F' 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  TREATISE 

On  the  Law  of 


Independent   Contractors 

And 

Employers'  Liability 

Including 

Formation  of  the  Relation 

Employers*  General  and  Exceptional  Liability 

Interliability  of  Employers  and  Contractors 
and  their  Subordinates 


By 

Theophilus  J.  Moll 

Of  the  Indianapolis  Bar — Dean  of  the  American 
Central  Law  School,  Indianapolis 


CINCINNATI 

THE  W.  H.  ANDERSON  CO. 
inio. 


T 
l<T|0 


Copyright,  1910, 

BY 

THE  W.  H.  ANDERSON  CO. 


To  the 

Instructors  and  Students 

with  whom,  during  the  past  decade,  he 

has  been  intimately  associated,  this 

modest  volume  is  sincerely 

Dedicated 

by 
The  Author. 


PREFACE 


The  increasing  number  of  cases  involving-  liability  grow- 
ing out  of  the  relation  of  Independent  Contractor  and  the 
corresponding  importance  of  the  subject  seem  to  justify  a 
separate  treatise  on  that  subject.  In  the  110  years  that  have 
elapsed  since  the  leading  case  of  Bush  v.  Steinman  was 
decided,  more  than  fifteen  hundred  cases  bearing  more  or 
less  on  the  law  of  Independent  Contractor  have  been  passed 
upon,  the  great  majority  of  these  within  the  past  twenty- 
five  years.  So  far  there  has  been  no  separate  text  on  the 
subject,  although  Judge  Thompson  devoted  to  it  a  number 
of  sections  of  his  Commentaries  on  Negligence  and  Mr. 
C.  B.  Labatt  has  written  several  very  excellent  and  ex- 
haustive monographic  notes  along  the  same  lines.  To  these 
the  author  acknowledges  very  material  assistance  in  the 
preparation  of  the  present  volume. 

The  subject  is  naturally  divided  into  a  discussion  of  (1) 
The  Relation  of  Independent  Contractors;  (2)  The  Gen- 
eral and  Exceptional  Liability  of  the  Employer  to  Third 
Persons,  and  (3)  The  Interliability  of  Employers  and  Inde- 
pendent Contractors  and  the  Subordinates  of  each.  These 
subdivisions  are  treated  in  the  order  given. 

Cross  references  are  given  to  the  National  Reporter 
System  and  to  all  the  current  general,  and  to  many  of  the 
special,  leading-case  publications,  to  which  are  added,  paren- 
thetically, the  years  in  which  the  various  cases  were  decided. 
Those  cases  which  the  author  considers  the  leading  ones, 
as  to  Independent  Contractors,  are  set  out  in  small  capitals. 

In  the  hope  that  his  effort  will  be  of  some  service  to  the 
profession  and  craving  their  indulgence  for  any  imperfec- 
tions, the  author  submits  this  volume. 

Theophilus  J.  Moll. 

Indianapolis,   December  1,  1909. 


CONTENTS. 


CHAPTER    I. 


Who  Are  Independent  Contractors, 

section  page 

1.  Representation    2 

2.  Distinction  between  agents  and  servants 3 

3.  Agent    defined 4 

4.  Master  and  servant  defined 4 

5.  Same — Servants    by    estoppel 6 

6.  Same — Servants    of  two   masters ^ 

7.  Same — Transfer    of    service 8 

8.  Same — Compulsory   service 1 1 

9.  Same — Volunteers   as    servants 12 

10.  Basis  of  constituent's  liability 13 

11.  Same — Of   principal's    liability 14 

12.  Same — Of   master's   liability 15 

13.  Distinction  between  servants  and  independent  contractors...  18 

14.  Same — Between  agents  and  independent  contractors 21 

15.  Doctrine  of  respondeat  superior 23 

16.  Independent  contractor  defined 26 

17.  Relation   of  subcontractor 30 

18.  Tests  of  relation  of  independent  contractor 30 

19.  Same — Retaining  control 32 

20.  Same — How    far   retained 37 

21.  Same — Right  of  dismissal 47 

22.  Same — Supervision  or  approval  by  employer 49 

23.  Same — Same — By    architect 52 

24.  Same — Same — By    engineer 53 

25.  Same — Purpose  of  retaining  control 56 

26.  Same — Surrendering  or  retaining  control  of  premises 57 

27.  Same — Construction  of  contract   of  employment 58 

28.  Same — Same — Question   for   court 61 

29.  Same — Same — Question   for  jury 62 

30.  Same — Identity  of  employer  and  independent  contractor 65 

31.  Same — Whose  servant  the  wrongdoer  is 65 

vii 


VIU  CONTENTS. 

SECTION  PAGE 

32.  Same — Burden  of  proof,  on  whom 68 

33.  Same — Obligation  of  personal  performance  as  test 70 

34.  Same — Compensation  as  test 70 

35.  Same — Character  of  work  as  test 75 

36.  Same — Relation  determined  by  statute 78 

37.  Pleading  the   relation 80 

38.  Particular  instances  of  independent  contractors 81 

39.  Effect  of  death  as  test 94 


CHAPTER   11. 
General  Rule  of  Employer's  Liability. 

45.  General   rule   stated 96 

46.  Basis  of  non-liability 98 

47.  Early   rule  stated 101 

48.  Bush   v.   Steinm ann 102 

49.  Basis  of  early  rule  discussed 110 

50.  Distinction  as  to  real  and  personal  property Ill 

51.  Present  rule  and  tendency 112 

52.  Effect  of  non-interference 115 

53.  General  rule  as  to  liability  of  municipalities 116 

54.  Same — As  to  school  districts! 119 

55.  Same — As  to  railroad   companies 119 

56.  Same — As  to  other  undertakings 120 

57.  Same — As  to  subcontractors 121 

58.  General  rule  after  acceptance 123 


CHAPTER   III. 
Employer's   Exceptional  Liability — I.    Character  of   Work. 

65.  Exceptions  to  general  rule 124 

66.  Doctrine  of  collateral  negligence 132 

67.  Contract  work  a  nuisance 134 

68.  Same — Unauthorized    139 

69.  Same — Unlawful,  other  than  nuisance 141 

70.  Same — Calling  for  injurious  result 143 

71.  Same — Result    unforeseen 147 

72.  Work  dangerous  per  se — General  rule 148 


CONTENTS.  IX 

SECTION  PAGE 

73.  Same— Blasting    154 

74.  Same — Fires    159 

75.  Same — Excavations    162 

76.  Same — Explosives    164 

n.  Same — Balloon  ascensions 165 

78.  Same — Logging   166 

79.  Same — Overhanging  objects 166 


CHAPTER   IV. 
Employer's    Exceptional   Liability — IL    Character  of   Obligation. 

85.  Absolute  duty 168 

86.  Statutory  duty,  generally 170 

87.  Same — Excavating,   generally 173 

88.  Same — Same — Shoring    174 

89.  Same — Authorized  appropriations 175 

90.  Same — Conditional  undertakings 175 

91.  Same — Licensee's  liability  to  public 178 

92.  Proprietor's  duty  regarding  sidewalks 180 

93.  Same — Regarding   highways 187 

94.  Same — Reipoving  condemned  buildings 191 

95.  Same — As  to  adjoining  owners 193 

96.  Same — Condition  of  premises,  generally 197 

97.  Same — Duty  to  supervise 197 

98.  Same — Duty  as  to  invitees 199 

99.  Same — Furnishing  appliances 200 

100.  Building  contracts,   generally 201 

101.  Same — Relation,   how  shown 203 

102.  Same — Management  of  machinery 203 

103.  Same— Party   walls 204 

104.  Same — Removing   dangerous    wall 204 

105.  Same — Exempt  though  fatal 205 

106.  Landlord  and  tenant,  generally 206 

107.  Same — Discharging  legal  duty 209 

108.  Same — Personally   supervising 210 

109.  Same — Work  imminently  dangerous 210 

110.  Master's  non-assignable  duty 212 


CONTENTS. 


CHAPTER   V. 

Employer's    Exceptional    Liability— II.    Character   of    Obligation 

(Continued). 

SECTION  page 

115.  Franchise  rights,  generally 213 

116.  Railroad  companies,  generally 215 

117.  Same — Delegating  operation  of  road 217 

118.  Same — Contractor  operating   road 217 

119.  Same — Contractor  in  control  at  time  of  injury 220 

120.  Same— Contractor  negligently  managing  construction  train..  221 

121.  Same — Presumption  as  to  direction  by  employer 221 

122.  Same — Contractor   killing    cattle 222 

123.  Same — Contractor   failing  to   fence 223 

124.  Same — Contractor  or  servant  trespassing 224 

125.  Same — Duty  to  traveler  as  to  excavations 228 

126.  Same — Lessee   operating   road 229 

127.  Same — Trustee  operating   road 233 

128.  Same — Using  tracks   in   common 233 

129.  Same — Liability  as  warehouseman 234 

130.  Street  railroads 234 

131.  Carrier's   duty,  generally 234 

132.  Same — Safe  premises 236 

133.  Same — Safe  vehicles,  etc 237 

134.  Same — Safe    tracks,    etc 238 

135.  Same — Sleepers,  etc 240 

136.  Same — Special  contract  as  to  freight 241 

137.  Same — As  to  running  trains 241 

138.  Same — As  to  criminal  acts 242 

139.  Cities   and  towns,  generally 243 

140.  Same — Jointly   with    contractor 245 

141.  Same — Safety   of    streets 248 

142.  Same — Constructing  sewers 254 

143.  Same — Grading  street 255 

144.  Same — As   to   bridges 257 

145.  Same — Necessity  as  to  notice 257 

146.  Same — Contractor's  trespasses 258 

147.  Counties    259 

148.  Public  utility  companies 260 

149.  Public    charities 260 

150.  Public  exhibitions 266 

151.  "Profit"    corporations 267 


CONTENTS.  XI 

CHAPTER  VI. 
Employer's  Exceptional  Liability — III.    Conduct  of  Employer. 

SECTION  PAGE 

160.  Liability   under   express   contract 269 

161.  Same— Effect   of    statute 271 

162.  Same — Duty    to   contract 272 

163.  Contract  for  defective  plans 273 

164.  Selecting  contractor,  generally 274 

165.  Same — Degree  of  care 277 

166.  Same — Incompetency  known 279 

167.  Identity  of  employer  and  contractor 280 

168.  Employer   wrongfully   interfering 281 

169.  Same — What  amounts  to   interference 282 

170.  Employer  reserving  control 283 

171.  Same — Partly   doing    work 285 

172.  Same — Permitting  use  of  defective  appliances 286 

173.  Employer  accepting  work 286 

174.  Same — What  is  acceptance 287 

175.  Same — Knowledge   of   condition 289 

176.  Same — Work  abandoned  by  contractor 289 

177.  Contractor  generally  exempt 291 

CHAPTER   VII. 
Employer's  Liability  to  His  Own  Servants. 

180.  General  rule  as  to  liability  for  independent  contractor's  act..  292 

181.  Whether    person   injured    was    servant    or    independent   con- 

tractor      295 

182.  Negligence  of  contractor 296 

183.  Same — Supplying    appliances 296 

184.  Same — Supplying    scaffolds 299 

185.  Same — Supplying  elevators 300 

186.  Same — Supplying  derricks 301 

187.  Same — Supplying  railroad  bridges 301 

188.  Employer's    duty   to    inspect 303 

189.  Assuring  safety  of  place 305 

190.  Defect  known  to  employer 306 

191.  Question  for  jury 307 

192.  Relation  between  employer  and  contractor 307 

193.  Same — Master's  duty  to  furnish  contractor  safe  tools,  etc 307 

194.  Same — Discharge    of   franchise 308 


Xll  CONTENTS. 

SECTION  PAGE 

195.  Negligence  of  contractor's  servants 309 

196.  Same — Whether    fellow-servants 310 

197.  Negligence  of  servants  of  lessors  and  others 313 

198.  Liabilit}'  regarding  subcontractors 314 


CHAPTER   VIII. 
Employer's  Liability  to  Contractors  and  Their  Servants. 

200.  Employer's  liability  to  contractors,  generally 315 

201.  Same — Relation   of   parties 316 

202.  Same — Liability  on  contract 317 

203.  Liability,   generally,   to  contractors'   servants 318 

204.  Joint  liability  of  employer  and  contractor 319 

205.  Relation  of  parties 320 

206.  Liability  as  to  condition  of  premises 323 

207.  Same — Employer  controlling  or  directing  work 326 

208.  Same — Safety   of   premises 328 

209.  Same — Employer  accepting  work 330 

210.  Same — Competency  of  co-workers 331 

211.  Contributory  negligence 333 


CHAPTER   IX. 

Contractor's  Liability — Subcontractors. 

215.  Contractors'   liability,  generally 334 

216.  Same — Relation    of   parties 336 

217.  Same — Statutory    right 337 

218.  Same — Negligent  performance  of  work 337 

219.  Same — Following  defective  plans,  etc 338 

220.  Same — Acts  of  employer 339 

221.  Same — Injury  to  wrongdoer 340 

222.  Same — Injury  to  his  own  servant 340 

223.  Same — Between  contractors  and  their  servants 341 

224.  Same — Injury  to  vendee's  servant 342 

225.  Same — Condition  of  employer's  premises 344 

226.  Same — Contractor's  legal  representative 345 

227.  Same — Injury  to  employer's  tenant 345 

228.  Same — Acceptance  by  employer 346 

229.  Same — Indemnity  to  employer 349 

230.  Subcontractors   350 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Abbott  V.  Johnson  Co.  (1887),  114 

Ind.  61 . .  126,  147. 
Abbott  v.  Johnstown,  etc.,  Rail- 
road   (1880),  80  N.   Y.  27,  36 

Amer.  Rep.  572. . 
Abston    V.    Walden    Academy 

(1907),  118  Tenn.  24,  102  S.  W. 

351.. 149. 
Adams     v.     University     Hospital 

(1907),  122  Mo.  675,  99  S.  W. 

453,  Huff.  Cas.  Agcy.  (2d  ed.), 

677.. 149. 
Adams   Express   Co.   v.   Schofield 

(1901),  111   Ky.  832,  64  S.  W. 

903..  28. 
Alabama,    etc..    Railroad    v.    Cos- 

kry   (1890),  92  Ala.  254,  9  So. 

202.. 24,  121. 
Alabama,  etc..  Railroad  v.  Martin 

(1893),    100    Ala.    511,    14    So. 

401..  24,  123. 
Alabama,    etc..    Railroad   v.    Wil- 
liams (1890),  92  Ala.  277,  9  So. 

203. .121. 
Albany  v.  Cunliff  (1849),  2  N.  Y. 

165.. 228. 
Albert  v.  Sweet  (1889,  N.  Y.),  42 

Am.  &  Eng.  R.  Cas.  216,  22  N. 

E.  762.. 223. 
Aldritt  V.  Gillette,  etc.,  Co.  (1902), 

85  Minn.  206,  88  N.  W.  741.  .65, 

97. 
Alexander  v.   Mandeville    (1889), 

33  111.  App.  559.. 23. 
Allan  v.  St.\te,  etc.,  Co.  (1892). 

132  N.  Y.  91,  30  N.  E.  482,  15 

L.  R.  A.  166,  28  Amer.  St.  Rep. 

556.. 38. 


Allen  v.  Hayward   (1845),  7  Q. 

B.  960,  4  Eng.  R.  etc.,  C.  104. . 

16,  71. 
Allen  V.   Willard    (1868),  57   Pa. 

374.. 28,  51,  93. 
Althorf  V.   Wolfe    (1860),  22   N. 

Y.  355.. 9. 
American.   The    (1874),   L.   R.,   6 

P    C    \2,7     38 
Anaces,     The     (1898),    87     Fed. 

565..  7. 
Anderson    v.    Boyer    (1897),    13 

App.  Div.  258,  43  N.  Y.  Supp. 

87.     Cf.   (1898),  156  N.  Y.  93, 

50  N.  E.  976.. 196. 
Anderson  v.  Fleming  (1903),  160 

Ind.  597,  67  N.  E.  443,  66  L.  R. 

A.  119,  16  Am.  Neg.  R.  606.  n. . 

72,  86,  91,  97,  115,  126.  131,  139, 

140,  141,  160,  180. 
Anderson   v.    Moore    (1903),    108 

111.  App.  106..  106. 
Anderson  v.  Tug  River,  etc.,  Co. 

(1906),  59  W.  Va.  301,  53  S.  E. 

713.. 72. 
Andrews  v.  Boedecker  (1885),  17 

111.  App.  213,  9  Amer.  St.  Rep. 

649. .95. 
Andrews    v.    Runyon    (1884),    65 

Cal.  629,  4  Pac.  669.. 93,  95. 
Andrews     Brothers     v.     Burns 

(1901),  22  Ohio  C.  C.  437.. 208. 
Angus  V.  Dalton  (1878),  L.  R.,  4 

Q.  B.  D.  162  (see,  also,  Dalton 

V.  Angus) .  .72. 
Ann  V.   Herter    (1903),  79  N.  Y. 

Supp.  825.. 93. 
Anne   Arundel   County   v.    Du- 

vall    (1880).    54    Md.    350,    39 

Amer.  Rep.  393..  147. 

xiii 


XIV 


TABLE   OF   CASES. 
[References  are  to  sections.] 


Appel  V.  Eaton,  etc.,  Co.   (1902), 

97    Mo.    App.    428,    71    S.    W. 

741.. IS. 
Arasmith    v.    Temple    (1882),    11 

111.  App.  39.. 32. 
Ardesco,     etc.,     Co.     v.     Gilson 

(1870),  63  Pa.  St.  146.. 73,  164. 

183. 
Arkerson  v.  Denison   (1875),  117 

Mass.  407.. 184. 
Arthur  v.  Texas,  etc.,  R.    (1905), 

139  Fed.  127;  (1907),  204  U.  S. 

505.    40    A.    &    E.    Ry.    C— N. 

S.  17.. 131. 
Aston  V.    Nolan    (1883),  63   Cal. 

269.. 95,  162. 
Atchison  Co.  v.  Sullivan  (1898), 

7  Kans.  App.  152,  53  Pac.  142, 

4  Amer.   Neg.  Rep.   149..  141. 
Atchison,  etc..  Railroad  v.  Davis 

(1885),    34   Kans.   202,    8    Pac. 

530..  118.  120. 
Atl.\nta  Railroad  v.  Kimberley 

(1891),  87  Ga.  161,  13  S.  E.  277, 

27  Amer.   St.  Rep.  231.. 45,  55, 

65,  67,  90,  116,  163,  168. 
Atlanta,  etc.,  R.  v.  West  (1905), 

121  Ga.  641,  49  S.  E.  711,  104 

Amer.  St.  Rep.  179,  67  L.  R.  A. 

701.. 9. 
Atlantic,     etc.,     Co.     v.      Coneys 
(1897),  82  Fed.  177,28  C.  C.  A. 

388,  Huff.  Cas.  Agcy.   (2d  ed.), 

583,  Burd.  Cas.  Torts,  403,  n . . 
..7,  20. 
Atwood  V.  Chicago,  etc..  Railroad 
(1896),  72  Fed.  447.. 6.  13,   15. 


Babbage   V.    Powers    (1891).    130 

N.  Y.,  281,  29  N.  E.  132,  14  L. 
R.  A.  398.. 69. 
Babcock,   The   William  F.,  In   re 

(1887),  31  Fed.  418. .210. 
Badenhop     v.     Sandhurst     (1864, 

Vict),  1  W.  W.  &  A.  B.  136.. 

141. 


Bailey  v.   New   York    (1842),   3 

Hill  (N.  Y.),  532,  38  Amer.  Dec. 

669.. 176. 
Bailey   v.    Troy,    etc..    Railroad 

(1883).   57   Vt.   252,   t2   Amer. 

Rep.  129..  15. 
Baird   v.    Dunn    (1895),   33    New 

Brunsw.  156..  110. 
Baker    v.     Grand    Rapids     (1897, 

Mich.),  1  Am.  Neg.  R.  90..  142. 
Baker     v.     Louisville,     etc.,     Co. 

(1901).  106  Tenn.  490.  61  S.  W. 

1029.  53  L.  R.  A.  474.. 211. 
Baldwin   v.   Abraham    (1901),  67 

N.    Y.    Supp.    1079,    171    N.   Y. 

677,  64  N.  E.  1118.  .38. 
Balsley  v.  St.  Louis,  etc..  Rail- 
road  (1886),  119  111.  68,  8  N. 

E.  859,  59  Amer.  Rep.  784..  122, 

126. 
Baltimore  v.  O'Donnell  (1879), 

53  Md.  110,  36  Am.  Rep.  395.. 
93.  139,  141. 

Baltimore,  etc.,  Co.  v.  Jamar 
(1901),  93  Md.  404,  49  Atl.  847, 
86  Amer.  St.  Rep.  428.  .8,  205. 

Baltimore,  etc..  Railroad  v. 
Paul  (1895),  143  Ind.  23,  40 
N.  E.  519,  28  L.  R.  A.  216..  126. 

Barclay  v.  Puget  Sound,  etc., 
Co.  (1908),  48  Wash.  241,  93 
Pac.  430,  16  L.  R.  A.— N.  S. 
140.. 20,  38. 

Bargv.  Bonsfield  (1896),  65  Minn. 
355,  68  N.  W.  45..  13,  19. 

Barham  v.  Ipswich  Dock   (1885), 

54  L.  T.— N.  S.  23.. 75. 
Barowski   v.   Schultz    (1901),   112 

Wise.  415,  88  N.  W.  236.. 200. 
BarreU  v.  Singer,  etc.,  Co.  (1865), 

1   Sweeny   (N.  Y.),  545.. 224. 
Barrow    Steamship    Co.    v.    Kane 

(1898),  88  Fed.    197.. 132,    133, 

137,  148. 
Barry  v.  City  of  St.  Louis  (1852), 

17  Mo.  121.. 50,  53,  139. 
Barry   v.   Ferkildsen    (1887),  72 

Cal.  254,   15  Pac.  657,  1  Amer. 

St.  Rep.  55.. 68,  92. 


TABLE  OF    CASES. 


XV 


[References  are  to  sections.] 


Bartlett  v.  Baker  (1864),  3  Hurl. 

&  C.  153.. 217. 
Hartley    v.    Trorlicht    (1892),    49 

Mo.  App  214..  180,  185. 
Bast  V.  Leonard  (1870),  15  Minn. 

304..  19,  174,  230. 
Battv  V.  Duxiniry   (1852),  24  Vt. 

155.. 141. 
Bauer    v.    Rochester     (1891),    59 

Hun    (N.    Y.).   615,    12   N.    Y. 

Supp.  418.. 67. 
Bauer  v.  St.  Louis,  etc.,  Railroad 

(1885),  46  Ark.  388..  197. 

B.\UMEISTER  V.    M.XRKHAM    (1897), 

101  Kv.  122,  39  S.  W.  844,  41  Id. 

816,  72  Amer.    St.   Rep.    397,  2 

Amer.  Neg.  Rep.  363.. 171. 
Baxter  v.  Warner   (1876).  6  Hun 

(N.  Y.),  585.. 93. 
Bav  Citv,  etc..  Railroad  v.  Austin 

(1870),  21  Mich.  390..  118. 
Bayer  v.  Railroad  Co.   (1896),  68 

111.  App.  219.. 21,  22. 
Beatrice,  see  Citv  of. 
Beattv     V.     Detroit     (1901),     129 

Mich.  20,  88  N.  W.  71..  140. 
Beattv  V.  Thileman  (1890),  29  N. 

Y.  St.  Rep.  498,  8  N.  Y.  Supp. 

640.. 20. 
Beberich  v.  Ebach  (1890),  131  Pa. 

165.  18  Atl.   1008.. 57,  173,  175, 

176. 
Beckman    v.    Meadville,    etc..    R. 

(1907),  219  Pa.  26,  67  Atl.  983, 

51  A.  &  E.  R.  C— N.  S.  224.. 

38. 
Belknap,  The  (1873),  2  Low.  Dec. 

281,  Fed.  Cas.  1244.. 38. 
Bell  V.   Portland    (1876),  2  Vict. 

L.  R.  197.. 147. 
Benian     v.     Rufford      (1851),     1 

Sim.— N.  S.  550..  126. 
Bemisch    v.    Roberts    (1891),    143 

Pa.  St.  1.  21  .^tl.  998..  110. 
Benedict    v.     .Martin     (1862),    36 

Barb.    (N.  Y.).  288.. 50. 
Benjamin   v.    Metropolitan    Street 

Railroad    (1896).    133   Mo.   274. 

34  S.  W.  590.. 92. 


Bennett  v.  Louisville,  etc..  Rail- 
road (1880),  102  U.  S.  577.  .206. 

Bennett  v.  Mt.  Vernon  (1904), 
124  Iowa,  537,  100  N.  W.  349,  16 
Amer.  Neg.  R.  612,  n..53,  139. 

Bennett  v.  Truebody  (1885),  66 
Cal.  509,  6  Pac.  329,  56  Am.  Rep. 
117,  13  Am.  Neg.  C.  517,  n..l6, 
38,  45. 

Benton  v.  Beattie  (1891),  63  Vt. 
186,  22  Atl.  422.. 

Benton  v.  Trustees  (1885),  140 
Mass.  13,  54  Amer.  Rep.  436.. 
149. 

Berberick,  see  Beberich. 

Berg  v.  Parsons  (1898),  156  N.  Y. 
109,  50  N.  E.  957,  41  L.  R.  A. 
391,  66  Amer.  St.  Rep.  542,  47 
Cent.  L.  J.  237,  Burd.  C.  Torts, 
406,  note,  4  Am.  Neg.  R.  432, 
Huff.  Cas.  Agcy.  (2d  ed.),  603. . 

19,  65,  67,  69,  73,  90,   164.   165. 
166,  168. 

Bernaur  v.  Hartman,  etc.,  Co. 
(1889),  33  111.  App.  491.. 21.  26. 

Bernstein  v.  Roth  (1893),  145  111. 
189,  34  N.  E.  37.. 29. 

Berry  v.  Ferkildsen.  see  Barry. 

Bessemer,  etc.,  Co.  v.  Doak 
(1907).  151  Ala.  670.  44  So.  627, 
12  L.  R.  A.—  N.  S.  389..  14. 

Bibb  v.  Norfolk,  etc.,  Railroad 
(1890,87  Va.  711,  14  S.  E.  167, 
47  Am.  &  Eng.  R.  Cas.  651..  15, 

20,  25,  11,  168,  206. 

BiCKFORD  V.  Richards  (1891),  154 

Mass.    163,   27   N.    E.    1014.   26 

Amer.  St.  Rep.  224.. 230. 
Bill  V.  New  York,  etc.,  Co.  (1901), 

69  N.  Y.  Supp.  989.. 21 5. 
Binnie  v.    Parlane    (1825).   4   Sc. 

Sess.  Cas.  (1st  scr.),  122.. 90. 
Birmingham  v.   McCrarv    (1887), 

84  Ala.  469,  4  So.  630.  27  Cent. 

L.  J.  598.. 65,  93,  141,  145. 
Bjornsen    v.    Saccone    (1899),   88 

111.  App.  6..  16.  100. 


XVI 


TABLE   OF   CASES. 
[References  are  to  sections.] 


Black  V.  Christ  Church,  etc.,  Co. 

(1894).  A.  C.  48,  7  Am.  Neg.  R. 

158.  n..65,  72,  74. 
Blackstone    v.    Chelmsford,    etc., 

Co.  (1898),  170  Mass.  321,  49  N. 

E.  635.. 221,  228. 
Black-well  v.   Wiswall    (1855),  24 

Barb.  (N.  Y.),  355..  15,  126. 
Bl.\ke  v.  Ferris  (1851),  5  N.  Y. 

48,  55  Amer.  Dec.  304.. 20.  45, 

50.  72,  73,  91,  93,  100,  168,  184. 
Blake  V.   Fox    (1892),   17   N.   Y. 

Supp.  508..  106,  109. 
Blake  v.  St.  Louis  (1867),  40  Mo. 

569.. 141. 
Blake  v.  Thirst  (1863),  2  Hurl.  & 

C.  20.. 15,  21. 
Blake  v.   Woolf   (1898),  2  Q.   B. 

426.. 106. 
Blakemore  v.    Bristol,    etc..   Rail- 
road (1858),  8  El.  &  Bl.  1035.. 

183,  224. 
Blattenberger    v.    Schuylkill,    etc., 

Co.  (1839),  2  Miles  (Pa.),  309. . 

50. 
Blessington    v.     City    of    Boston 

(1891),  153  Mass.  409,  26  N.  E. 

1113.. 69,  115,  142. 
Bloomfield,  etc.,  Railroad  v.  Grace 

(1887),  112  Ind.   128,  13  N.  E. 

680.. 124. 
Bloomfield,  etc..  Railroad  v.  Van 

Slike  (1886),  107  Ind.  480,  8  N. 

E.  269.. 124. 
Blumb  v.  City,  etc.  (1884),  84  Mo. 

112,  54  Amer.  Rep.  87.. 20,  25, 

67,  72,  73. 
Board,  etc.,  v.  AUman  (1895),  142 

Ind.  573,  42  N.  E.  206.  .92,  147. 
Board,  etc.,  v.  Vickers  (1900),  62 

Kans.  25,  61  Pac.  391.. 219. 
Boardman    v.    Creighton     (1902), 

95  Me.  154,  49  Atl.  363.. 70,  97. 
Bohrer  v.  Harness  Co.  (1898),  19 

Ind.  App.  489,  45  N.  E.  668,  49 

N.  E.  296..  168,  176. 
Bonaparte   v.   Wiseman    (1899), 

89   Md.    12,   Atl.   918,   44  L.   R. 

A.  482,  Burd.  C.  404.  .70,  72,  75. 


Boniface    v.     Relyea     (1868),     6 

Robt.  397.. 32. 
Boomer   v.    Wilbur    (1899),    176 

Mass.  482,  57  N.  E.  1004,  53  L. 

R.  A.  172,  Huff.  Cas.  Agcy.  (2d 

ed.).  600,  8  Am.  Neg.  R.  246.. 

20,  26,  28,  66,  93,  104. 
Booth  v.  Railroad  Co.  (1893),  140 

N.  Y.  267,  35  N.  E.  592,  24  L. 

R.  A.   105,  37  Am.  St.  R.  552, 

Burd.  C.  717.. 73. 
Borough,  etc..  Depot,  see  Depot. 
Boss   V.  Jarmulowsky    (1903),  81 

N.  Y.  Supp.  400..  106. 
Bossence    v.    Kilmore    (1883),    9 

Vict.  L.  R.  35.. 72. 
Boston  v.  Worthington    (1858), 

10  Gray   (Mass.),  496,  71   Am. 

Dec.  678..  140. 
Boswell  v.  Laird   (1857),  8  Cal. 

469,   68   Am.    Dec.   345.. 38,   50. 

164,  173,  175. 
Boucher    v.    New    York,    etc.,    R. 

(1907),  196  Mass.  355,  82  N.  E. 

15,  13  L.  R.  A.— N.  S.  1177,  50 

A.  &  E.  Ry.  Cas.  1..115,  117. 
Bower  v.   Peate    (1876),  L.  R.,  1 

Q.  B.  D.  321,  11  Am.  Neg.  R. 

645.. 65,  66,  67,  72,  94,  95,  103. 
Bowers  v.  Lovekin   (1856),  6  El. 

&  Bl.  584.. 33. 
Bowyer    v.    Anderson    (1831),    2 

Leigh,  550.. 38. 
BoYD  V.  Chicago,  etc.,  Co.  (1905), 

217  111.  332,  75  N.  E.  496,   108 

Am.    St.   253,   43   A.   &   E.   Ry. 

Cas.— N.  S.  154.. 38. 
Brackett    v.     Lubke     (1862),    4 

Allen     (Mass.),     138,    81     Am. 

Dec.  694..  13,  34,  35,  38,  45,  124. 
Bradley  v.  Hartford,  etc.,  Ins.  Co. 

(1883),  19  Fed.  246.. 216. 
Brady   v.    Chicago,   etc.,   R.    Co. 
(1902),  114  Fed.  100,  57  L.  R. 

A.  712.  .7,  13. 
Bragdon     v.     Perkins,     etc.,     Co. 

(1898),  87  Fed.  109.. 224. 
Braisted     v.     Brooklyn,     etc.,     R. 
(1899),  61  N.  Y.  Supp.  674.  .95. 


TABLE  OF   CASES. 
[References  are  to  sections.] 


XVU 


Braidwood    v.     Bonnington,    etc., 

Co.  (1866),  2  Scot.  L.  R.  152.. 

97. 
Brannock  v.   Elmore    (1892),   114 

Mo.  55.  21   S.  W.  451.. 73,  90, 

164,  166. 
Brehm  v.  Great  Western   (1861), 

34  Barb.  (N.  Y.),  256..  133. 
Brennan  v.  Kllis   (1893),  70  Hun, 

472,  24  N.  Y.  Supp.  426..  107. 
Brennan  v.  Gallick   ( ),  20  N. 

Y.  St.  1023,  30  Abb.  N.  C.  166. . 

11. 
Brennan  v.   Schreiner   (1892),  20 

N.  Y.  Supp.  130,  28  Abb.  N.  Cas. 

481.. 73. 
Breslin  v.  Sparks  (1904),  97  App. 

Div.  69,  89  N.  Y.  Supp.  627.. 7. 
Breux     v.     Montreal      (1896),     9 

Queb.  S.  C.  503..  149. 
Bright     v.     B.\rnett,     etc.,     Co. 

(1894),  88  Wis.  299,  60  N.  W. 

418,  26  L.  R.  A.  524.. 208,  230. 
Brine      v.      Great      Western      R. 

(1862),  2  Best.  &  S.  402.  .217. 
Brooks  V.  Somerville   (1881),  106 

Mass.  271..  139. 
Brophy  v.  Bartlett  (1888),  1  Silv. 

Ct.  App.   (N.  Y.),  575.. 29,  182. 
Broslin    v.    Kansas    City,    etc.,   R. 

(1897),  114  Ala.  .398,  21  So.  475, 

9  A.  &  E.  R.  C— N.  S.  99.  .208. 
Bross     V.     Carnegie     Steel     Co. 

( ),   28    Pitts.    L.    J.— N.    S. 

318.. 219. 
Brow  V.   Boston,  etc.,  R.    (1892), 

157  Mass.  399,  32  N.  E.  362.  .6. 
Brown  v.  Engineering  Co.  (1896), 

166  Mass.  75,  34  N.  E.  1118,  33 

L.  R.  A.  605,  55  Am.  St.  382.  .20. 
Brown    v.    McLeish     (1887),    71 

Iowa,  381,  32  N.  W.  385.. 72. 
Brown     v.     Rothwell,     etc.,     Co. 

(1906),   132   Iowa,  631,   110  N. 

W.  12..  38. 
Brown  v.   Smith    (1890),  86  Ga. 

274,   12  S.   E.  411,  22  Am.   St. 

456,  14  Am.  Neg.  Cas.  80,  n..7. 


Brown  v.  Sullivan  (1888),  71  Tex. 

470,  10  S.  W.  288..  196. 
Brown  v.  Werner  (1873),  40  Md. 

15.. 94. 
Bruce  v.  Central  M.  E.  Church 

(1907),   147  Mich.  230,   110   N. 

W.  951,   11    Am.   &   Eng.   Ann. 

Cas.  151,  Huff.  Cas.  Agcy.    (2d 

ed.),  686..  149. 
Brunswick,   etc.,   Co.   v.   Bruns- 
wick, etc.,  R.    (1898,)    106  Ga. 

270,   39   S.   E.   92,   71    Am.    St. 

249.. 129. 
Brusso  V.   Buffalo    (1882),  90  N. 

Y.  679.. 139,  141,  145. 
Buckner    v.     Richmond,     etc.,     R. 

(1895),    72    Miss.    873,    18    So. 

449.. 126. 
Buddin    V.    Fortunato    (1890),    10 

N.  Y.  Supp.  115.. 73. 
Buffalo  V.  Clement   (1892),  19  N. 

Y.  Supp.  846.. 68. 

BUFF.'VLO    V.    HOLLOW.W     (1852),    7 

N.  Y.  493,  57  Am.  Dec.  550.  .70, 

160. 
Buri5.\nk    v.    Bethel,    etc.,    Co. 

(1883),  75  Me.  373.  46  Am.  R. 

400.. 38. 
BuRDicK   V.    Che.\ule    (1875),   26 

Oh.   St.   393.  20  Am.   R.  767.. 

224. 
Burger    v.     Philadelphia     (1900), 

196  Pa.  St.  41.  46  Atl.  262..  140. 
Burgess  v.   Gray    (1845),   1    Man. 

G.  &  S.  578.  1  C.  B.  578..  15,  34, 

GJ,  168. 
Burke     v.     DeCastro,     etc.,     Co. 

(1877),  11  Hun  (N.  Y.),  354.. 

224. 
Burke  v.  Ireland   (1901),  26  App. 

Div.  487,   50   N.   Y.   Supp.   369. 

166  N.  Y.  305.  59  N.  E.  914.  .38, 

71,  100,  164,  168. 
Burke  v.  Norwich,  etc.,  R.  (1867), 

34  Conn.  474,   13  Am.   Neg.   C. 

662.. 196. 
Burmester  v.   New  York,  etc..  R. 

(1881),  47  N.  Y.  Supp.  Ct.  264.. 

168. 


XVIU 


TABLE  OF  CASES. 
[References  are  to  sections.] 


Burnes   v.    Kansas    City,    etc.,    R. 

(1895).   129  Mo.  41,  31   S.   W. 

347.. 180,  190. 
Burns   v.    Cork,    etc.,    R.    (1863), 

Irish  R.,  13  C.  L.— N.  S.  543.. 

133.  134. 
Burns    v.    McDonald    (1894),    57 

Mo.  App.  599..  100. 
Burns    v.    Michigan    Paint   Co. 

(1908),   152  Mich.  613,   116   N. 

W.  182,  16  L.  R.  A.— N.  S.  816. . 

38. 
Burton     v.     Galveston,     etc.,     R. 

(1884),  61  Tex.  526,  21  A.  &  E. 

R.  Cas.  218.. 7,  19,  21,  118. 
Bush  V.  Grant  (1901),  22  Ky.  Law 

R.  1766,  61  S.  W.  363..  172. 
Bush  v.  Steinman   (1799),  1  B. 

&  P.  404..  15,  16,  46.  47,  48,  re- 
ported in  full.. 49,  50,  51,  53,  72. 

86.  100,  116.  125. 
BusHBY   V.    New    York,   etc.,   R. 

(1887),  107  N.  Y.  374,  14  N.  E. 

407,  1  Am.  St.  R.  844..  110. 
Butler  V.  Bangor   (1877),  67  Me. 

385.. 142. 
Butler  V.  Hunter   (1862),  7  Hurl. 

&  N.  826,  8  Am.   Neg.  R.  301, 

n..72,  94.  97. 
Butler    V.    Lewman     (1902),    115 

Ga.  752,  42  S.  E.  98.. 206. 
Butler  V.  Townsend    (1891),    126 

N.  Y.  105,  26  N.  E.  1017..  188. 
Butts   V.    Mackey    Co.    (1893),    72 

Hun,  562.  25  N.  Y.  Supp.  531 . . 

20,  107,  168. 
Butts  V.   Mackcv  Co.    (1895),   147 

N.   Y.   715,  42  N.   E.  722..  107, 

168. 
Bvrnes    v.    Western     (1896),     17 

New  South  Wales  L.  R.  80.. 26. 


Cabot  v.  Kingman  (1896),  166 
Mass.  403,  44  N.  E.  344.  33  L. 
R.  A.  45.. 85. 

Cairo,  etc.,  R.  v.  Woolsey  (1877), 
85  III.  370..  124. 


Caldwell  v.  New  Jersey,  etc.,  Co. 

(1872),  47  N.   Y.  282..  133. 
Callahan    v.    Burlington,    etc.,    R. 

(1867),    23    Iowa,    562.. 24,    52, 

116. 
Callahan     v.      Phillips     Academy 

(1901),  180  Mass.  183,  62  N.  E. 

260..  100. 
Callan   v.    Bull    (1896),    113    Cal. 

593,  45  Pac.  1017.  .20,  22. 
Callan   v.    Pugh    (1900),   54  App. 

Div.  545,  66  N.  Y.  Supp.  1118.. 

203,  207. 
Camblin  v.  Phila.,  etc.,  R.   (1907), 

218  Pa.  54,  66  Atl.  977,  50  A.  & 

E.  R.  Cas.— N.  S.  160..  117. 
Cameron  v.  Eraser   (1881),  9  Sc. 

Sess.  Cas.    (4th  ser.),  26.. 95. 
Cameron   v.    Nystrom    (1893),   A. 

C.  308.. 31. 
Cameron    v.    Oberlin     (1897),    19 

Ind.  App.  142,  48  N.  E.  386.  .72, 

74,  95. 
Cameron  v.  Vandegrifif  (1892),  53 

Ark.   381,   13   S.   W.   1092.. 221, 

223. 
Cameron,  etc.,  Co.  v.   Anderson 

(1904).  98  Tex.   156,  81   S.  W. 

282,  1  L.  R.  A.— N.  S.   198,  16 

Am.   Neg.   R.   599,  608.  .45,   79, 

93. 
Camp    V.    Church    Wardens,    etc. 

(1852),  7  La.  Ann.  321.. 23. 
Campbell  v.  Lunsford    (1887),  83 

Ala.  512.  3  So.  522.. 38. 
Capital  Electric  Co.  v.  Hauswald 

(1898),   78   111.   App.   359..  115, 

126. 
Carey  v.  Courcell    (1865),  17  La. 

Ann.  108..  176,  230. 
Cargill  V.  Duffy  (1903),  123  Fed. 

721.. 27,  38. 
Carlson    v.    Stocking    (1895),    91 

Wis    432,  65  N.  W.  58..  19,  67, 

72,  74. 
Carmen    v.    Steubenville,    etc.,    R 
(1854),  4  Oh.  St.  399.. 73,  124. 
Carrico  v.   Railroad  Co.    (1891), 

35  W.  Va.  389,  14  S.  E.  12.. 70, 

131,  133,  134. 


TABLE   OF   CASES. 


XIX 


[References  are  to  sections.] 


Carrico  v.  Railroad  Co.    (1894), 

39  W.  Va.  86,  19  S.  E.  571,  24 

L.    R.   A.   50.. 19,   70,    131,    133, 

134. 
Carroll  v.  Staten  Island  Rail- 
road  (1874),  58  N.  Y.   126,  17 

Am.  Rep.  221..  133. 
Carroll    v.     Plympton     (1860)  ,  9 

Upp.  Can.  C.  P.  345.. 74. 
Carter  v.   Berlin   Mills    (1876), 

58  N.  H.  52,  42  Am.  R.  572.  .38, 

73,  97. 
Carty  v.  London    (1889),  18  Ont. 

R.  122..  140. 
Cary   v.   Chicago    (1895),   60   111. 

App.  341.. 20. 
Case,   etc..    Works   v.    Niles,    etc., 

Co.  (1895),  90  Wis.  590,  63  N. 

W.   1013..  224. 
Casement   v.    Brown    (1893),    148 

U.  S.  615..  16.  22,  23,  168. 
C.\TTERLiN  V.  Frankfort   (1881), 

79  Ind.  547,  41  Am.  R.  677..  140. 
Central,  etc.,  Co.  v.  Bailey  (1903), 

28   Ky.    L.    R.    873.    76    S.    W. 

842.. 208. 
Central,     etc.,     Co.     v.     Grider 

(1903).  115  Ky.  745,  74  S.  W. 

1058.  65  L.  R.  A.  455,  16  Am. 

Neg.  R.  610.  n..l 72.  208. 
Central  Railroad  v.  Grant  (1872), 

46  Ga.  417,   14  Am.   Neg.   Cas. 

212,  n..35,  116. 
Central     Railroad     v.     Passmore 

(1892),   90   Ga.   203,    15    S.   E. 

760..  197. 
Central,   etc..   Railroad  v.   Morris 

(1887),   68   Tex.    59,    3    S.    W. 

457.. 126. 
Central,    etc..    Railroad    v.    Wood 

(1901).    129    Ala.    483,    29    So. 

775 . . 126. 
Central     Transportation     Co.     v. 

Pullman,   etc.,   Co.    (1891),    139 

U.  S.  62,  11  Sup.  Ct.  478..  126. 
Chapin    v.    Holvoke,    etc.,    Assn. 

(1896),    165    Mass.   280,   42   N. 

E.  1130.. 149. 


Chapman  v.  Parlane  (1825),  3  Sc. 

Sess.   Cas.    (1st   ser.),   585.. 90. 
Charlebois  v.  Railroad  Co.  (1892), 

91  Mich.  59.  51  N.  W.  812..  119. 
Charles  v.  Taylor    (1878),  L.   R., 

3  C.  P.  D.  492.. 29. 
Charlock  v.  Freel  (1891),  125  N. 

Y.   357,   26   N.    E.   262..  19,  27, 

218,  222. 
Charticrs,     etc.,     Co.     v.     Lynch 

(1888),  118  Pa.  St.  362,  12  Atl. 

435.. 76,  175. 
Chartiers,     etc.,     Co.     v.     Waters 

(1888),  123  Pa.  St.  220,  16  Atl. 

423.. 86. 
Chattahoochee,  etc.,  Co.  v.  Bres- 

well    (1893),  92  Ga.  631,  18  S. 

E.  1015.. 8. 
Chattahoochee,   etc.,   R.    v.    Behr- 

man    (1903),    136   Ala.    508,   25 

So.  132..  66. 
Chattahoochee,   etc.,  R.  v.  Zeber- 

man    (1903),    136   Ala.    132,    30 

A.  &  E.  R.  C— N.  S.  929.. 69. 
Chattanooga,  etc.,  R.  v.  Whiteland 

(1892),   89   Ga.    190,    15    S.    E. 

44.. 118. 
Chattanooga,  etc.,  R.  v.  Liddell 

(1890).   85   Ga.   482,    11    S.    E. 

853,  8  R.  &  Corp.  L.  J.  296,  21 

Am.  St.  R.  169..  118. 
Cheetham  v.   Hampton    (1791),  4 

Tenn.  318. 
Chesapeake,    etc.,    Co.    v.    Alle- 
ghany Co.  (1881).  57  Md.  201, 

40  Am.  R.  430.  .92. 
Chicago   V.    Dermody    (1871),   61 

111.  431,  14  Am.  Neg.  Cas.  418, 

n..l9,  97. 
Chicago  v.  Murdock  (1904),  212 

III.  9,  7  N.  E.  46,  103  Am.  St. 

R.  221.. 24,   115,   139. 
Chicago     V.     Norton,     etc.,     Co. 

(1900),  97  111.  App.  651;  (1902), 

196  111.  580,  63  N.  E.  1043.. 85. 
Chicago     V.     Robbins     (1862),    2 

Black  (U.  S.),  418.. 65,  66,  67, 

91,  93,  205. 


XX 


TABLE   OF   CASES. 


[References  are  to  sections.] 


Chicago,    etc.,     Co.    v.    Campbell 
(1904),  116  111.  App.  322.  .30,  38. 
Chicago,  etc..  Co.  v.  La  Mantion 
(1904),    112    111.   App.   43.. 215, 
219. 
Chicago,     etc.,      Co.     v.      Moren 
(1900),   185   111.  571,  57  N.  E. 
773.. 198. 
Chicago,      etc.,      Co.      v.      Myers 
(1897),   168  111.   139,  48  N.   E. 
66.  .30,  72,  76,  115,  168. 
Chicago,    etc.,     Co.    v.     Stanford 

(1902).  105  111.  App.  99..  126. 
Chicago,  etc.,  R.  v.  Clark  (1889). 
26   Nebr.  645,  42   N.  W.  703.. 
171. 
Chicago,     etc.,     R.     v.      Eaton 
(1902),   194  111.   441,  62  N.   E. 
784,  88  Am.   St.  161..  189. 
Chicago,     etc.,     R.     v.     Ferguson 
(1893),    3    Colo.    App.    414,    33 
Pac.    684,    13    Am.    Neg.    Cas. 
647,  n . .  124. 
Chicago,  etc.,  R.  v.  Hart   (1902), 

104  111.  App.  57..  126. 
Chicago,    etc.,    R.    v.    Hennessey 
(1884),    16    111.    App.    153.. 71, 
102. 
Chicago,    etc.,    R.    v.    Hutchinson 
(1891),  45   Kans.   186.  25    Pac. 
576..  123. 
Chicago,  etc.,  R.  v.  LaMantie,  see 

Chicago,  etc.,  Co. 
Chicago,  etc.,   Co.  v.   McCarthy 
(1858),  20  111.  385,  71  Am.  Dec. 
285.. 19,  124. 
Chicago,    etc.,    R.    v.    Moranda 
(1879),  93  111.  314,  34  Am.  R. 
168.. 46. 
Chicago,  etc.,  R.  v.  Meech  (18%), 
163  III.  305,  45  N.  E.  220..  126. 
Chicago,     etc.,     R.     v.     Schmitz 
(1904),  211    111.  446,  71   N.   E. 
1050.. 126. 
Chicago,     etc.,     R.     v.     Watkins 
(1890),   43    Kans.    50,   22    Pac. 
985,  40  A.  &  E.  R.  Cas.  499.  .124. 
Chicago,     etc.,     R.     v.     Whipple 
(1859),    22    111.    105..  122,    124, 
126. 


Chicago,    etc.,    R.    v.    Yarbrough 
(1896,   Tex.   Civ.   App.),   35   S. 
W.  422..  118. 
Choctaw,    etc.,    R.    v.     Wilker 
(1906),   16   Okla.   384,  84   Pac. 
1086,   3   L.   R.   A.— N.    S.   595, 
46  A.  &  E.  Ry.  Cas.  759..  124, 
175,  176. 
Church     v.     Chicago,     etc.,     R. 
(1892),  50  Minn.  218,  52  N.  W. 
647,  Huff.  Cas.  Agcy.   (2d  ed.), 
639,  16  L.  R.  A.  861.. 9. 
Church,  etc.,  v.  Buckhart   (1842), 

3  Hill  (N.  Y.),  193..  149. 
Church,  etc.,  v.  Paterson,  etc., 
R.  (1901),  66  N.  J.  L.  218,  49 
Atl.  1030,  55  L.  R.  A.  81; 
(1903),  68  N.  J.  L.  399,  53  Atl. 
449,  1079.. 163. 
Chute  V.  Moeser  (1908),  11  Kans. 

706,  95  Pac.  398.  .38. 
Cincinnati  v.  Stone  (1855),  5  Oh. 

St.  38..  15,  19,  22. 
Cincinnati,   etc.,  R.  v.   Finnell 
(1900),  108  Ky.  135,  55  S.  W. 
902,  57  L.  R.  a.  266.. 9. 
Circleville  v.   Neuding    (1885),  41 

Oh.  St.  465.. 93,  139,  141. 
City  of  Beatrice  v.  Reid    (1894), 
41  Nebr.  214,  59  N.  W.  770.. 53, 
67,  141. 
City  of  Chicago  v.  Joney   (1871), 
60  111.   383,   14  Am.   Neg.   Cas. 
418,  n..l9,  21. 
City    of    Independence    v.    Slack 
(1895),   134  Mo.  66,  34  S.  W. 
1094.. 92,  97. 
City  of  Ironton  v.  Kelley  (1882), 

38  Oh.  St.  50..  141. 
City     of     Richmond     v.     Long 
(1867),  17  Graft.  (Va.),  375,  94 
Am.  Dec.  461..  149. 
City  of  San  Antonio,  The  (1905), 
135    Fed.    879,     143    Fed.    955 
(1906).. 
City  of   Sterling  v.   Schiffmacher 

(1892),  47  III  App.  141..  141. 
City    of   Tiffin    v.    McCormack 
(1878),  34  Oh.  St.  68,  32  Am. 
Rep.  408.. 35. 


TABLE   OF   CASES, 


XXI 


[References  are  to  sections.] 


City,  etc.,  St.  R.  Co.  v.  Moores 

(1894),  80  Md.  348,  30  Atl.  643, 

45  Am.  St.  345.. 72,  85. 
Clapp  V.  Kemp  (1877),  122  Mass. 

481..  18,  45. 
Clare     v.     National,     etc.,     Bank 

(1875),  8  Jones  &  Sp.  104.  .22. 
Clark  V.  Chicago,  etc.,  R.   (1879), 

92  111.  43..  197. 
Clark  v.   Fry    (1858),  8  Oh.   St. 

358,   72   Am.   Dec.   590.  .65,   67, 

70,  100,  168. 
Clark  V.  Hannibal,  etc.,  R.  (1865), 

36  Mo.  202.. 52,  85,   115,  124. 
Clark  V.  Railroad  Co.   (1854),  28 

Verm.  103..  45,  116. 
Clark  V.  St.  Louis,  etc.,  R.   ( , 

Ark.),  44  Am.  &  Eng.  R.  C— 

N.  S.  39..  123. 
Cleadon,  The   (1860),  14  Moo.  P. 

C.  C.  97.. 38. 
Cleghorn  v.  Taylor  (1856),  18  Sc. 

Sess.    Cas.    (2d    ser.),   664.. 16, 

176. 
Clement    v.    Canfield    (1856),    28 

Vt.  302..  126. 
Clevel.vnd,     etc.,     R.     v.     Berry 

(1899),  152  Ind.  607,  53  N.  E. 

415,  46  L.  R.  A.  38..  180. 
Clevel.\nd,  etc.,  R.  v.  Walrath 

(1882),  38  Oh.  St.  461,  43  Am. 

R.  433.. 135. 
Clothier  v.  Webster  (1862),  12  C. 

B.— N.  S.  790.. 216,  217. 
Cloud  Co.  V.  Vickers   (1900),  62 

Kans.  25,  61  Pac.  391..  163. 
Coal    Run,    etc.,    Co.    v.    Strawn 

(1884),   15  III.  App.  347.. 38. 
Coates   V.    Chapman    (1900),    195 

Pa.  109,  45  Atl.  676..  196. 
CoGGiN  V.  Central  R.   (1879),  62 

Ga.  685,  35  Am.  R.  132.. 7. 
Cogswell    V.    West    St.,    etc.,    R. 

(1892),    5    Wash.    46.    31    Pac. 

411.. 126. 
Cohen    v.    Simmons     (1892),    66 

Hun,  634,  21  N.  Y.  Supp.  385.. 

95. 


Cole  V.  Louisiana,  etc.,  Co.  (1908), 

121  La.  771,  46  So.  801.. 30. 
Coleman  v.  State   (1892),  134  N. 

Y.  564,  31  N.  E.  902.. 69. 
Coleridge,    The    (1896),    72    Fed. 

676  (Cf.  Saunders  v.  C.)..7. 
CoLGROVE   V.    Smith    (1894),    102 

Cal.  220,  36  Pac.  411,  27  L.  R. 

A.  590.  .65,  72,  85. 
Collins  V.  N.  Y.,  etc.,  Med.  Soc. 

(1901),  59  N.  Y.  App.  Div.  63, 

69  N.  Y.  Supp.  106..  149. 
Collis  V.   Selden   (1868),  L.  R.,  3 

C.  P.  495.. 224. 
Columbus,     etc.,     R.     v.     Arnold 

(1869),    31    Ind.    177,    99    Am. 

Dec.  615..  165. 
Congregation   v.    Smith    (1894), 

163  Pa.  St.  561,  30  Atl.  279,  43 

Am.  St.  Rep.  808.  26  L.  R.  A. 

504,  39  Cent.  L.  J.  452..  19,  173, 

175,  228. 
Congreve  v.  Smith   (1858),  18  N. 

Y.  79,  Chase  C.  Torts,  180.. 67, 

68,  92. 
Conlin   V.    Charleston    (1868),    15 

Rich.  L.  201.. 50,  182. 
Conlon  V.  Eastern,  etc.,  R.  (1883), 

135   Mass.   195,   15  A.  &  E.  R. 

Cas.  99..  193. 
Connell)'    v.     Boothby,     etc.,    Co. 

(1899),  190  Pa.  St.  553,  42  Atl. 

1024.. 7. 
Connelly  v.  Faith,  see  Connelly  v. 

Boothbv. 
Connelly  "v.  Rist  (1897),  45  N.  Y. 

Supp.  321.. 206. 
Connor     v.     Pennsylvania     R. 

(1904),  24  Pa.  Super.  Ct.  241.. 

3S. 
Connor  v.  Sisters,  etc.  (1900),  10 

Ohio    Dec.    86,    7    Ohio— N.    P. 

514..  149. 
Connors  v.  Hennessey  (1873),  112 

Mass.  96.. 72,  95,  164. 
Connors  v.   Great   Northern,  etc., 

Co.    (1904),  90  App.   Div.   311, 

85  N.  Y.  Supp.  644.. 9. 


XXll 


TABLE   OF    CASES. 
[References  are  to  sections.] 


Consolidated,    etc.,    Co.    v.    Kiehl 

(1901),   190   111.   145,  60   N.   E. 

87,  16  Am.   Neg.  R.  613,  n..7. 
Consolidated,  etc.,  Co.  v.  Keifer 

(1890).   134   111.   481,  25   N.   E. 

799.   10  L.   R.   A.  696,  23   Am. 

St.  688.. 204.  ^ 

Consolidated,  etc.,  Co.  v.  Seniger 

(1899).   179  111.  370.  53   N.   E. 

733..  27. 
Conway   v.    Furst    (1895),   57    N. 

J.  L.  645,  32  Atl.  380..  185,  193. 
Coon  V.  S3-racuse,  etc.,  R.  (1849), 

6  Barb.  231.. 46. 

Cooper    v.     Seattle     (1897),     16 

Wash.  462.  47  Pac.  887.  58  Am. 

St.  46..  19.  168. 
CoRBiN  V.  Mills  (1858).  27  Conn. 

274,  71   Am.  Dec.  63..  19,  34. 
Cork    v.     Blossom     (1894),     162 

Mass.    330,    38    N.    E.    495,    26 

L.  R.  A.  256,  44  Am.   St.  Rep. 

362..  104.  176. 
Corrigan   v.    Elsinger    (1900),   81 

Minn.    42,    83    N.    W.    492..  18, 

19,  20. 
Costigan,  Ex  parte  (1884).  Newf. 

R.  414.. 36. 
Cotton    v.    Lindgen    (1895),    106 

Cal.  602,  39   Pac.  939,  46  Am. 

St.  255.. 7. 
Coughlin    V.    Cambridge     (1896), 

166  Mass.  268.  44  N.  E.  218.. 7. 
Coughlin    V.    Gillison    (1898),    68 

L.  J.  Q.  B.— N.  S.   147..  183. 
CouGHTRY     V.     Globe,     etc.,     Co. 

(1874),  56  N.  Y.   124,   15  Am. 

R.  387.. 98,  99.  230. 
Covington    v.    Gevler    (1891),    93 

Ky.  275,  19  S.  W.  741.. 20. 
Covington,    etc..    Co.    v.    Stein- 

BROCK  (1899),  61  Oh.  St.  215,  55 

N.  E.  618,  76  Am.  St.  Rep.  375, 

7  Am.  Neg.  R.  154.  .65,  66,  72, 
85,  94,  95. 

Cox  v.  Central,  etc.,  R.  (1898), 
170  Mass.  129,  49  N.  E.  97,  9 
Am  &  Eng.  R.  Cas.— N.  S. 
591.. 74. 


Cox  V.   Mason    (1903).  89  N.  Y 

App.  Div.  219,  85  N.  Y.  Supp. 

973.. 224. 
Coyle    V.    Pierrepont     (1885),    37 

Hun,  379.. 210. 
Craft     V.     Albemarle,     etc.,     Co. 

(1903),  132  N.  C.  151,  43  S.  E. 

597,  30  A.  &  E.  Rv.  Cas.— N.  S. 

84,  16  Am.  Neg.  R.  615,  n..26. 
Craig     V.      Inhabitants      (1908, 

Mass.),  85  N.  E.  855..  141. 
Crane    Elevator    Co.    v.    Lippert 

(1894),  63   Fed.  942,    11   C.   C. 

A.  521.. 227. 
Crawford   v.    Maxwell    (1842),   3 

Humph.   (Tenn.),  476.. 215. 
Crawford  v.    Peel    (1887),   Ir.   L. 

R.,  20  C.  P.  332.. 86,  87. 
Crawford     v.     The     Wells     City 

(1889),  38  Fed.  47.. 196. 
Creed  v.  Hartman  (1864),  29  N. 

Y.    591.   86   Am.    Dec.   341.. 67, 

68,  92,  230. 
Crenshaw  v.   UUman    (1893),  113 

Mo.  633,  20  S.  W.  1077.. 70,  92, 

95,  168. 
Crisler   v.    Ott    (1894),   72   Miss. 

166,  16  So.  41 6.. 69. 
Cross  V.  Koster  (1897,  N.  Y.  App. 

Div.),  3  Am.  Neg.  R.  256.  .79. 
Crudup    V.    Schreiner    (1901),    98 

111.  App.  337.. 65. 
Crusselle  v.  Pugh   (1881),  67  Ga. 

430,  44  Am.  R.  724.. 38,  106. 
Cuff  v.  Railroad  Co.   (1870),  35 

N.  J.  L.  17,  10  Am.  R.  205,  16 

Am.   Neg.   Cas.  668,  n..45,  51, 

57,  65,  67,  72,  73,  90,  164. 
Cullom   v.    McKelvey    (1898),   49 

N.  Y.  Supp.  669.. 20. 
Cummins    v.     City    of     Seymour 

(1881),  79  Ind.  491.. 92. 
Cunningham    v.    International 

Railroad    (1879),   51    Tex.   503, 

32  Am.  R.  632..  18,  116,  118. 
Cunningham  v.  Syracuse,  etc.,  Co. 

(1897).   20   App.    Div.    171.   46 

N.  Y.  Supp.  954.. 7. 
Currier     v.     Lowell     (1834),     16 

Pick.   170.. 141. 


TABLE   OF   CASES. 


xxm 


[References  are  to  sections.] 


CuRTiN   V.   Somerset   (1891),   140 

Pa.   St.   70,  21    Atl.   244,   12  L. 

R.    A.    322,    23    Am.    St.    Rep. 

220..  173,  224,  228. 
Curtis     v.     Kiley     (1891),     153 

Mass.   123,  26  N.  E.  421,  Burd. 

Cas.  Torts.  403.. 67,  69,  75,  93, 

98,  106,  107,  115,  183. 
Cuthbertson    v.    Parsons    (1852), 

12  C.  B.  304.. 38. 


Daegling   v.    Gilmore    (1868),    49 

111.  248,  14  Am.  Neg.  Cas.  416. . 

219. 
Dagcnais  v.  Haule  (1897,  Queb.), 

11  C.  S.  225.. 34. 
Dale  V.  Hill,  etc.,  Co.   (1904),  108 

Mo.  App.  90,  82  S.   W.   1092.. 

196. 
Daley  v.  Boston,  etc.,  R.   (1888), 

147  Mass.  101,  16  N.  E.  690.  .38. 
Dallas,  etc.,  R.  v.  Able  (1888),  72 

Tex.  150,  9  S.  W.  871,  37  A.  & 

E.  R.  Cas.  453..  118. 
Dalton   V.   Angus    (1881),  6  App. 

C.  829.  7  Am.  Neg.  R.  157,  n.. 

65,  97,  160. 
Dalton     V.     Bachelor     (1857),     1 

Post.  &  F.  15.. 38. 
Dalvell  V.  Tvrer   (1858).  28  Law 

J.,  Q.  B.  52.. 57. 
Dane     v.      Cochrane,      etc.,     Co. 

(1895),  164  Mass.  453,  41  N.  E. 

678.. 35. 
Daniel  v.  Metropolitan  R.  (1871), 

L.  R..  5  H.  L.  63.. 72. 
Darmstaetter  v.  Moynahan  (1873), 

27  Mich.  188.. 34,  91. 
Daugherty  v.  Herzog  (1896),  145 

Ind.  255,  44  N.  E.  457,  57  Am. 

St.  Rep.  204,  32  L.  R.  A.  837.. 

224,  228. 
Davie    v.    Levy    (1887),    39    La. 

Ann.   551,  2   So.   395.  4  Amer. 

St.  Rep.  225.. 66,  67,  70,  168. 
Davis  v.  Central  Cong.  Society 
(1880),  129  Mass.  367,  37  Am. 

R.  368.. 149. 


Davis  v.  Summerfield  (1903), 
133  N.  C.  325,  45  S.  E.  654.  63 
L.  R.  A.  492.  92  Amer.  St.  Rep. 
225,  16  Am.  Neg.  R.  611,  n..65, 
95. 
Davison   v.    Shanahan    (1892),  93 

Mich.  486.  53  N.  W.  624.  .95. 
Davoust  v.  City,  etc.  (1906),  149 

Cal.  69,  84  Pac.  760,  9  Am.  & 

Eng.  Ann.  C.  847.. 38. 
Dayton    v.    Pease    ( ),   8   Oh. 

St.  80.. 70. 
Decola  v.  Cowan  (1906),  102  Md. 

551,  62  Atl.  1026.  .29. 
Deford   v.    State    (1868),   30   Md. 

179..  15,  67,  100,  164. 
DeForest    v.    Wright     (1852),    2 

Mich.  368.  .38.  45,  50. 
Delaware,     etc.,     R.     v.      Hardy 

(1896).  59  N.  J.  L.  35,  34  Atl. 

986,  16  Am.  Neg.  Cas.  658,  n.. 

6,7. 
Delaware,  etc.,  R.  v.  Trautwein 

(1890),  52  N.  J.  L.  169,  41  Atl. 

178,   7   L.    R.   A.   435.   7   R.   & 

Corp.  L.   J.   316,   19  Amer.   St. 

Rep.  442..  132. 
Delnionico  v.   New  York    (1848), 

1  Sandf.  S.  C.  (N.  Y.),  222.. 53. 
Delory   v.    Blodgett    (1904).    185 

Mass.  126,  69  N.  E.  1078,  64  L. 

R.  A.   114.. 7. 
Deming  v.  Terminal  Co.    (1900), 

63  N.   Y.   Snpp.  615,  49  N.   Y. 

App.  Div.  493,  Huff.  Cas.  Agcy. 

(2d  ed.),  608.. 87,  93. 
Denver  v.  Rhodes  (1886),  9  Colo. 

554,  13  Pac.  729..  19. 
Denver,     etc.,     R.     v.     Gustafson 

(1895),   21    Colo.   393,   41    Pac. 

505.. 6. 
Depot    v.    Simmons    (1886),    112 

Pa.  St.  384.  5  Atl.  434,  56  Am. 

Rep.    31 7..  140.      (See    Susque- 
hanna Depot  V.  Simmons.) 
Detroit  v.  Corey  (1861),  9  Mich. 

165,  80  Am.  Dec.  78..  13,  20,  34, 

93.  161. 
Devlin  v.   Smith    (1887).  89   N. 

Y.  470,  42  Am.  Rep.  311..  110, 

183,  184,  188,  193,  228,  230. 


XXIV 


TABLE  OF   CASES. 
[References  are  to  sections.] 


Devo  V.  Kingston,  etc..  R.  (1904), 

88  N.  Y.  Supp.  487..  150. 
Dickson  v.  Hollister  (1889),  123 
Pa.  St.  431,  16  Atl.  484,  10  Am. 
St.  Rep.  533.. 21. 
Diethers    v.    St.    Paul,    etc.,    Co. 
(1902),  86  Minn.  474,  91  N.  W. 
15.. 6. 
Dillon    V.    Hunt    (1884),   82    Mo. 

155.. 67,  94,  166. 
Dillon  V.   Hunt    (1891),   105   Mo. 
154,  16  S.  W.  516,  24  Am.  St. 
374..  67. 
Dillon  V.  Sixth  Avenue  R.  (1884), 

97  N.  Y.  627.. 70. 
Dixon     v.     Chicago,     etc.,     R. 
(1891),  109  Mo.  413,  19  S.  W. 
412,  18  L.  R.  A.  792..  196. 
Donaldson   v.   Commissioners 
(1890),   30   New    Bruns.   279.. 
149. 
Donnellv  v.    Boston,    etc.,    Ceme- 
tery  (1888).  146  Mass.  163,  15 
N.  E.  505.. 149. 
Donovan   v.   Long    (1893),    1    Q. 
B.    D.    629,    Hufif.    Cas.    Agcy. 
(2d  ed.),  615,   Burd.   C.  Torts, 
409.. 7. 
Donovan   v.   Transit   Co.    (1894), 
102  Cal.  245,  36.  Pac.  517.  .58, 
130.  134. 
Doolan  v.  Midland  R.   (1877),  L. 

R.,  2  App.  C.  792..  136. 
DooLEY  V   Sullivan    (1887),   112 
Ind.  451,  14  N.  E.  566,  2  Amer. 
St.  Rep.  209.. 92,  142. 
Doran   v.   Flood    (1891),  47  Fed. 

543.. 93,  105,  222. 
Dorrity    v.    Rapp    (1878),    72    N. 
Y.  307.. 86. 

Dorse  v.  Fisher   ( ),  10  Ohio 

Dec.  163..  106. 
Dougherty  Co.  v.  Newsom  (1899), 
107  Ga.'  811,  33  S.  E.  660..  161. 
Downes     v.     Harper     Hospital 
(1894),    101    Mich.    555,   60   N. 
W.  42,  45  Am.  St.  427..  149. 
Downey  v.   Lowe    (1897),  22  N. 
Y.    App.    Div.    460,    48    N.    Y. 
Supp   207.. 87,  90,  92. 


Drake    v.     Seattle     (1902),    30 
Wash.  81,  70  Pac.  231,  94  Am. 
St.  Rep.  844..  141. 
Drennan    v.    Grady     (1897),    167 

Mass.  415,  45  N.  E.  741.. 206. 
Drennan    v.     Smith     (1896).    115 

Ala.  396,  22  So.  442..  181. 
Drennon  v.  Patton,  Worsham,  etc., 
Co.  (1908),  Tex.  Civ.  App.,  109 
S.  W.  218..  16,  38. 
Dresden,    The     (1894),    62    Fed. 

438.. 148. 
Dressell   v.    Kingston    (1884),    32 

Hun,  533.. 67. 
DriscoU     v.      Humes,     etc.,     Co. 
(1908,  R.  L),  69  Atl.  766..  196. 
Driscoll     v.     Norwich,     etc.,     R. 
(1894),   65    Conn.   230,   32  Atl. 
354..  126. 
Driscoll    v.    Towle     (1902),     181 
Mass.  416,  63  N.  E.  922,  Huff. 
Cas.  Agcv.  (2d  ed.),  618.. 7,  20, 
29,  38.  126. 
Dublin  v.  Taylor,  etc.,  R.   (1899), 

92  Tex.  535,  50  S.  W.  120.. 
Duchemin  v.   Board,  etc.,    (1880), 

Newf.  236..  14L 
Duer    v.     Consolidated    Gas    Co. 
(1903),  86  App.  Div.  14,  83  N. 
Y.  Supp.  714.. 70,  95. 
Duncan   v.    Anderson    (1876),   56 
Ga.  398.. 28. 

Duncan    v.    Findlater     ( ),    6 

Clark  &  F.  894.. 49. 
Duncan  v.  Magistrates,  etc.  (1877, 
Ct.   of   Sess.),    14   Scot.    L.    R. 
603..  126,  134. 
Dunleavy    v.    Sullivan     (1908, 

Mass.),  85  N.  E.  866..  184. 
Dunton  v.   Niles    (1892),  95   Cal. 
494,  30  Pac.  762..  19. 
,    DuPratt  V   Lick    (1869),  38  Cal. 
691.. 15. 
Dutton   v.   Amesbury   Natl.   Bank 
(1902),  181  Mass.  154,  62  N.  E. 
405,  Huff.  Cas.  Agcy.   (2d  ed.), 
591.. 29,  35,  50. 

DWINNELLE    V.     NeW     YoRK,     ETC., 

R.  (1890),  120  N.  Y.  117,  24 
N.  E.  319,  8  L.  R.  A.  224,  17 
Amer.  St.  Rep.  611..  133,  135. 


TABLE  OF   CASES. 


XXV 


[References  are  to  sectlons.l 


Dwyer  v.  National  Steamship  Co. 
(1880),  17  Blatchf.  472,  4  Fed. 
493.. 210. 


Earl    V.     Beadleston     (1877),     10 

Jones  &  S.  (N.  Y.),  294.  .66,  94. 
Earl   v.    Lubbock    (1905),    1    K. 

B.  253,    1   Amer.   &   Eng.   Ann. 

Cas.  753..  160,  224,  230. 
East    Anglian    R.    v.    Eastern 

Counties  R.    (1851),   11   C.   B. 

775,    7    Eng.    R.    &    Corp.    Cas. 

150.. 126. 
Easter  v.  Hall    (1901).  12  Wash. 

160,  40  Pac.  728.. 78. 
East  Line,  etc.,  R.  v.  Culberson 

(1888),  72  Tex.  375,  10  S.  W. 

706,   13  Amer.   St.   Rep.   805,  3 

L.  R.  a.  567..  126,  205. 
East  Line,  etc.,  R.  v.  Lee  (1888), 

71  Tex.  538,  9  S.  W.  604..  126. 
Easton,    etc..     Congregation,     see 

Congregation,  etc. 
East   St.   Louis  v.  Giblin    (1878), 

3  111.  App.  219.. 34. 
East  St.  Louis  v.  Murphy  (1899), 

89  111.  App.  22..  143. 
Eaton    v.    Railway    Co.    (1871), 

59  Me.  520,  8  Amer.  Rep.  430. . 

36,  45,  52,  97,  116,  168. 
Eblin    V.    Miller    (1880),    78    Ky. 

371 . .  106. 
Eby  V.   Lebanon   Co.    (1895),  166 

Pa.  632,  31  Atl.  332..  147. 
Eckman     v.     Lauer     (1897),     67 

Minn.  221,  69  N.  W.  893.. 223. 
Edmundson  v.   Pittsburg,  etc.,  R. 

(1885),  111   Pa.  St.  316,  2  Atl. 

404,  23  A.  &  E.  R.  Cas.  423.  .52, 

72>,  116. 
Edw.     Thompson     Co.     v.     Clark 

(1904),  109  N.  Y.  Supp.  700.. 

13. 
EiGHMY    V.    Union     Pacific    R. 

(1895),  93  Iowa,  538,  61  N.  W. 

1056,  27  L.  R.  A.  296..  149. 
Eldred    v.     Mackie     (1901),    178 

Mass.  1,  59  N.  E.  673.. 22,  100, 

169. 


Elliott  V.  Concord    (1853),  27  N. 

H.  204..  141. 
Elliott  v.  Pray  (1865),  10  Allen, 

378,  87  Amer.  Dec.  653.  .99. 
Ellis     v.     Sheffield     Gas     Co. 

(1853),  2  Ell.  &  B.  767.. 65,  67, 

68,  69,  70. 
Elton,  The  (1906),  142  Fed.  367, 

73  C.  C.  A.  467.. 7. 
Emmerson  v.  Fav  (1896),  94  Va. 

60.  26  S.  E.  386.  .28,  29,  34,  93, 

140. 
Empire,  etc.,  Co.  v.  Brady  (1896), 

164  111.  58,  45  N.  E.  486.. 224. 
Engel   v.    Eureka   Club    (1893), 

137  N.  Y.  100,  32  N.  E.  1052,  33 

Amer.  St.  Rep.  695,  Huff.  Cas. 

Agcy.   (2d  ed.),  599,  n..65,  72, 

79,  100,  103,  104. 
Englar     v.     Seattle      (1905),     40 

Wash.  72,  82  Pac.   136,  19  Am. 

Neg.  R.  49..  196. 
Erie  v.   Calkins    (1877),  85   Pa. 

St.  247,  27  Amer.  Rep.  642.  .20, 

24,  27,  52,  53,  93,  100. 
Erie  City,  etc.,  Works  v.  Barber 

(1883),  102  Pa.  St.  156.. 216. 
Erskine  v.  Chino,  etc.,  Co.  (1895), 

71  Fed.  270..  183. 
Evans  v.   Martin    (1880),  6  Vict. 

L.  R.  176.. 91. 
Evans  v.  Murphv  (1898),  87  Md. 

498,  40  Atl.  109.. 70. 
EvANSViLLE   V.    Senhenn    (1897), 

151    Ind.  42,  47   N.   E.  634,   51 

N.  E.  88,  41  L.  R.  A.  728,  68 

Amer.  St.  Rep.  218.. 32,  92,  141, 

145. 

EVANSVILLE,     ETC.,     R.     V.     GrIFFI.N 

(1885).  100  Ind.  221,  50  Amer. 

Rep.  788.. 206. 
Evarts    v.    St.     Paul,    etc,    R. 

(1894),  56  Minn.  141,  57  N.  W. 

459,  45  Amer.  St.  Rep.  460,  22 

L.  R.  A.  663.. 9. 
Ewan   v.    Lippincott    (1885),   47 

N.  J.  L.  192,  54  Am.  R.  148.  .27. 
Evlcr  V.  Alleghany  Co.  (1878),  49 

'Md.  257,   33  Amer.   Rep.   249.. 

141. 


XXVI 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Falendar  v.  Blackwell   (1906),  39 

Ind.  App.  121,  79  N.  E.  393.  .16, 

37,  76. 
Fanjov  v.  Scales   (1865),  29  Cal. 

243.. 175. 
Farren  v.  Sellers  (1887),  39  La. 

Ann.    1011,    3    So.    363,    4   Am. 

St.  256.  .23.  207. 
Farrigan  v.   Pevear   (1906),   193 

Mass.  147,  78  N.  E.  855,  8  Am. 

&  Eng.  Ann.  Cas.  1109.  118  Am. 

St.  484..  149. 
Farwell     v.     Boston,     etc.,     R. 

(1842),  5  Met.  55,  38  Am.  Dec. 

339..  46. 
Fell  V.  Rich  Hill,  etc.,  Co.  (1886), 

23  Mo.  App.  216.. 20. 
Felton    V.    Deall    (1850),    22    Vt. 

170,  54  Am.  Dec.  61.. 31,  38. 
Fenner  v.  Crips  Bros.  (1899),  109 

Iowa,  155,  80  N.  W.  526.. 7. 
Ferguson  v.  Hubbell   (1884),  97 

N.  Y.  507,  49  Am.  R.  5 14.. 28, 

34,  74. 
Field   V.    French    (1898),   80   111. 

App.  78.. 224. 
Fink     v.     Missouri,     etc.,     Co. 

(1884),  82  Mo.  276,  52  Am.  R. 

376.. 34.  35. 
Fink  V.  St.  Louis,  etc.,  R.  (1872), 

71  Mo.  52..  139. 
Finkelstein  v.  Balkin   (1907),  103 

N.  Y.  Supp.  99.. 38. 
Fire  Ins.  Patrol  v.  Boyd  (1888), 

120  Pa.  St.  624,  15  Atl.  553,  6 

Am.   St.   745,   Huff.   Cas.  Agcy. 

(2d  ed.),  670..  149. 
First  Pres.  Cong.,  see  Congrega- 
tion, etc. 
Fish  V.   Dodge    (1862),  38   Barb. 

(N.  Y.),  163.. 215. 
Fisher  v.  Minegaux  (1906),  73  N. 

J.  L.  424,  63  Atl.  902..  196. 
Fisher  v.   New  Bern   (1906),  140 

N.  C.  506,  53  S.  E.  342.. 38. 
Fisher  v.  Rankin  (1894),  78  Hun 
(N.   Y.),  407,  29  N.  Y.   Supp. 

143.. 168. 


Fisher  v.   Trvon    (1898),   15   Oh. 

C.  C.  541 . .93. 
Fisher  v.  West  Virginia,  etc.,  R. 

(1894),  39  W.   Va.  366,   19   S. 

E.  578,  23  L.  R.  A.  758..  126. 
Fitzgerald  v.  Timoney  (1895),  34 

N.  Y.  Supp.  460..  106. 
Fitzmaurice  v.  Fabian  (1892),  147 

Pa.   St.    149,   23   Atl.   444.  .173, 

228. 
Fitzpatrick    v.    Chicago,    etc.,    R. 

(1888).    31    111.    App.    649.. 72, 

168,  195. 
Florsheim    v.    DuUaghan    (1895), 

58  111.  App.  593.. 67. 
Flower      v.      Adam      ( ),      2 

Taunt.  314.  .49. 
Floyd  V.  Weaver  (1852),  21  L.  J., 

Q.  B.— N.  S.  151.. 33. 
Fluker     v.     Georgia,     etc.,     R. 

(1889),  81  Ga.  461,  9  S.  E.  529, 

2  L.  R.  A.  843,  17  Am.  St.  328.. 

38. 
Flynn     v.     New    York,     etc.,    R. 

(1883),  17  Jones  &  S.  (N.  Y.), 

60.. 75. 
Ford    V.     Arbuckle     (1907),     107 

App.  Div.  221,  94  N.  Y.  Supp. 

1097.. 196. 
Ford    V.    Oamaru     (1883),    New 

Zeal.  L.  R.,  1  Sup.  Ct.  97..  196. 
Fordyce  v.   Woman's,   etc.,   Assn. 

(1906),  79  Ark.  559,  96  S.  W. 

155.. 149. 
Foreman  v.  Mayor  (1871),  L.  R., 

6  Q.  B.  214.. 149. 
Forsvth    V.    Hooper     (1865),    11 

Alien,  41 9.. 34,  93. 
Fort    Wayne   v.    Christie    (1901), 

156  Ind.  172,  59  N.  E.  385.. 24, 

181. 
Foster  v.  Chicago  (1902),  197  111. 

264,  64  N.  E.  322.. 20,  25. 
Foster     v.      National,     etc.,     Co. 

(1907),  216  Penn.  279,  65  Atl. 

618..  34. 
Foster    v.    Wadsworth,    etc.,    Co. 

(1897),  168  111.  514,  48  N.   E. 

163.. 34,  45. 


TABLE  OF   CASES. 


XXVU 


[References  are  to  sections.] 


Fowler      v.      Saks      (1890),      7 

Mackey    (D.   C),   507,   7   L.    R. 

A   649. .85. 
Fox   V.    Buffalo   Park    (1897),  21 

App.  Div.   (N.  Y.),  321,  47  N. 

Y.  Supp.  788..  150. 
Fox    V.    Ireland    (1900),   46   App. 

Div.    (N.    Y.),    541,   61    N.    Y. 

Supp.  1061..  165. 
Fox  V.  Porter  (1895),  18  Pa.  Co. 

Ct.  641.. 230. 
Fox  V.  Wm.  Wharton  Co.   (1900, 

N.  J.  L.),  7  Am.  Neg.  R.  467.. 

215. 
Francis  v.  Cockrell  (1870),  L.  R., 

5   Q.   B.   184,  501.. 150. 
Francis    v.    Johnson    (1904),    127 

Iowa,  391,   101    N.   W.   878,   17 

Am.  Neg.  R.  507.. 74. 
Frankfort  v.  Allen  (1904),  26  Ky. 

L.  R.  581,  82  S.  W.  292.. 86. 
Frascr    v.    Red    River,    etc.,    Co. 

(1891),  45  Minn.  235,  47  N.  W. 

785.. 110. 
Frassi   v.    McDonald    (1898).    122 

Cal.  400,  55   Pac.   139,   772.  .23, 

93. 
Freeman  v.    Minneapolis,  etc.,  R. 

(1881),  28  Minn.  443,  10  N.  W. 

594..  89. 
French  v.  Vix.(1894),  143  N.  Y. 

90,  37  N.  E.  612.. 73. 
Frerker  v.   Nicholson    (1907),  41 

Colo.  12,  92  Pac.  224,  13  L.  R. 

A.— N.  S.  1122.. 216. 
Fromme  v.  Idc   (1891),  14  N.  Y. 

Supp.    802;    (1893).   23    N.    Y. 

Supp.    56;    (1895),    144    N.    Y. 

630,  39  N.  E.  493.. 218. 
Fuller   v.    Citizens    Bank    (1882), 

15  Fed.  875.. 93. 
Fuller   v.    Grand    Rapids    (1895), 

105  Mich.  529,  63  N.  W.  530. . 

143. 
Fulton    Co.    St.    R.   v.   McConnell 
(1891),   87   Ga.    756,    13    S.    E. 

828.. 75. 
Furey    v.    New    York,    etc.,    R. 
(1902),  67  N.  J.  L.  230,  51  Atl. 

505.. 211. 


Gagnon   v.   Dana    (1898),  69  N. 

H.  264,  39  Atl.  982,  41  L.  R.  A. 

389,  76  Am.  St.  170..  183. 
Gahagen  v.  Aermotor  Co.  (1897), 

67  Minn.  252,  69  N.  W.  914.  .19. 
Galatia,      etc.,      Co.      v.      Harris 

(1904),  116  111.  App.  70.. 34. 
Gallagher    v.    Southwestern,    etc., 

Co.   (1876),  28  La.  Ann.  943.. 

16,  65. 
Galveston,    etc.,    R.    v.    Garteiser 

(1895),   9  Tex.    Civ.   App.   456, 

29  S.  W.  939..  126. 
Gardner    v.     Bennett     (1874),    6 

John.  &  Sp.   197.. 
Gardner  v.    Friedrich    (1898),   25 

N.  Y.  App.  Div.  521,  49  N.  Y. 

Supp.  1077.. 200,  219. 
Gardner    v.     Smith     (1859),     7 

Mich.   410.   74  Am.   Dec.   722.. 

118,  123. 
Gay  V.  Roanoke,  etc.,  Co.    (1908, 

N.  C),  62  S.  E.  436..  16. 
Gayford    v.     Nichols     (1854),    9 

Exch.  702.. 50,  66,  95. 
Gayle     v.      Missouri,     etc.,      Co. 

(1903),  177  Mo.  427,  76  S.  W. 

987.. 20,  29. 
Geer  v.  Darrow  (1891),  61  Conn. 

220,  23  Atl.   1087.. 34,  218.  222. 
Geist  v.  Rothschild  (1900),  90  111. 

App.  324.. 23,  100. 
Georgia,     etc.,     R.     v.     Bernstein 

( ),   113  Ga.   175,  38  S.   E. 

394.. 73. 
Georgia,  etc.,  R.  v.  Propst  (1888), 

85  Ga.  203,  4  So.  711.. 9. 
Geokgi.v,     etc.,     R.     v.     Friddell 

(1887),  79  Ga.  489,  7  S.  E.  214, 

11  Am.  St.  444..  128. 
Gerlach  v.  Edelmcvcr    (1881),  15 

Jones     &     S.     292.    88     N.     Y. 

645.. 7. 
Giacomini     v.     Pacific,    etc.,     Co. 

(1907).  5  Cal.  App.  218,  89  Pac. 

1059.. 38. 
Gilbert  v.  Beach  (1855).  16  N.  Y. 

606..  50,  100,  168. 


XXVUl 


TABLE  OF  CASES. 
[References  are  to  sections.] 


Gilbert   v.   Halpin    (1858),   Exch., 

3  Ir.  Jur.— N.  S.  300.  .68. 
Gilbert     v.     Nagle      (1875),     118 

Mass.  278.. 99. 
Gile  V.  J.  W.  Bishop  Co.   (1903), 
184  Mass.  413,  68  N.  E.  837.. 
225. 
Gill   V.   Atlantic,   etc.,   R.    (1875), 

27  Oh.  St.  240..  123. 

Gillson    V.    North    Grey,    etc.,    Co. 

(1874),  35  U.  C,  Q.  B.  475.. 74. 

Gilmore  v.    Philadelphia,   etc.,  R. 

(1893),  154  Pa.  St.  375,  25  Atl. 

774.. 132. 

Ginther  v.  Yorkville  (1897),  3  Pa. 

Super.  403.. 53. 
Giraudi     v.     Electric,     etc.,     Co. 
(1895),  107  Cal.  120,  13  Amer. 
Neg.  Cas.  517,  n..225. 
Gittens  v.  Wm.  Porter  Co.  (1903), 
90  Minn.  512,  97  N.  W.  378.. 
186. 
Gitzenhoffen  v.  Sisters,  etc.,  Assn. 
(1907),   32   Utah,   46,   88    Pac. 
691 . . 149. 
Gladestry,  The    (1904),   128  Fed. 

591..  7. 
Glaser    v.    Michelson    (1904),    86 

N.  Y.  Supp.  286..  169. 
Glasgow    V.    Gillenwaters    (1902), 
23  Kv.   L.   R.  2375,  67   S.   W. 
381.. 141. 
Glavin    v.    Rhode    Island    Hos- 
pital (1879),  12  R.  I.  411,  424, 
34  Am.  R.  675..  149,  164. 
Gleeson   v.   Railroad    Co.    (1890), 

140  U.  S.  435.. 92. 
Glickauf  v.   Maurer    (1874),   75 

111.  289,  20  Am.  R.  238.. 26. 
Goddard  v.  Harpswell  (1892),  84 
Me.   499,   24   Atl.   956,   30   Am. 
St.  373,  411.. 72. 
Godfrey  v.  New  York  (1905),  104 
App.  Div.  357,  93  N.  Y.   Supp. 
899,  aff'd  (1906),  185  N.  Y.  563, 
n  N.  E.  1187.. 141. 
Goldman  v.  Mason  (1888),  18  N. 
Y.  Super.  R.  376,  2  N.  Y.  Supp. 
337.. 20. 


Goldschmid    v.    Mayor    (1897,    N. 
Y.  App.  Div.),  1  Am.  Neg.  R. 
508.. 143. 
Gooch  V.  Association   (1872),  109 

Mass.  558..  149. 
Good  v.  Johnson  (1907),  38  Colo. 
440,  88  Pac.  439,  8  L.  R.  A.— 
N.  S.  896..16,  20,  28,  203,  205. 
Goodlander  v.  Standard,  etc.,  Co. 

(1894),  63  Fed.  400.. 224. 
GoRHAM    V.    Gross    (1878),    125 
Mass.  232,  28  Am.  R.  234.. 65, 
70,  176. 
Gourdier  v.  Cormack  (1853),  2  E. 

D.  Smith,  254.. 50. 
Goyle   V.    Missouri,   etc.,   Co.,   see 

Gayle. 
Grace  v.   Hyde,  etc.,  Co.    (1904), 

208  111.  147,  70  N.  E.  12.. 7. 
Grace,  etc.,  Co.  v.  Probst  (1904), 
208  111.  147,  70  N.  E.  12.. 7,  34. 
Grand  Rapids,  etc.,  R.  v.  Hunt- 
ley   (1878),   38   Mich.    537,   31 
Am.  R.  321..  133. 
Grant   v.    Shaw    (1872),   9   Scot. 

L.  R.  254.. 38. 
Grant    v.     Stillwater     (1886),    35 
Minn.  242,  28  N.  W.  660..  139. 
Gray  v.  PuUen  (1864),  5  B.  &  S. 
970,  7  Am.  Neg.  R.  158,  n.  .65, 
12,  86,  90,  160. 
Great   Northern   R.  v.   Eastern 
Counties    R.    (1851),   9    Hare, 
306,   7   Eng.    R.   &    Corp.    Cas. 
643.. 126. 
Green  v.  Berge   (1894),  105  Cal. 
52,  38  Pac.  539,45  Am.  St.  25.. 
75. 
Green  v.  Sansom   (1899),  41   Fla. 

94,25  So.  332.. 7. 
Green  v.   Soule    (1904),   145   Cal. 
96,  78  Pac.  337,  17  Am.  Neg.  R. 
8.. 20,  22,  57,  65. 
Gregory    v.    Hill    (1869),    8    So. 

Sess.  Cas.    (3d  ser.),  282.. 46. 
Griffith    V.    Wolfram    (1875),    22 
Minn.    185,    16    Am.    Neg.    Cas. 
219,  n..l71. 


TABLE  OF  CASES. 


XXIX 


[References  are  to  sections.] 


Griggs    V.    Houston    (1881),    104 

U.    S.   553,   8   A.   &   E.    R.   C. 

359.. 86. 
Groesbeck   v.    Pinson    (1899),   21 

Tex.    Civ.    App.   44,   50    S.    W. 

620.. 34. 
Grote  v.  Chester,  etc.,  R.  (1848), 

2   Exch.   251,   5   Eug.   R.   &   C. 

Cas.  649..  133. 
Groves    v.    Rochester    (1886),    39 

Hun   (N.  Y.),  5.. 141. 
Groves    v.    Wimborne    (1898),    2 

Q.  B.  402.. 184. 
Gulf,  etc.,  R.  v.   Delaney    (1900), 

22  Tex.  Civ.  App.  427,  55  S.  W. 

538..  186.  192. 
Gulf,  etc.,  R.  v.   Shearer    (1892), 

1  Tex.  Civ.  App.  343,  21  S.  W. 

133.. 186. 
Gulzoni  V.  Tyler    (1883),  64  Cal. 

334,  30  Pac.  981.. 31. 
Gwathney    v.     Little     Miami     R. 

(1861),  12  Ohio  St.  92.. 29,  38. 


Haas    V.     Missionary    Society 

(1893),  6   Misc.    (N.   Y.),  281, 

26  N.  Y.  Supp.  868..  149. 
Hackett  v.  Western  Union  Tel. 

Co.   (1891),  80  Wis.  187,  49  N. 

W.  822,  10  Rail.  &  Corp.  L.  J. 

390.. 72,  75. 
Haefelin  v.  McDonald   (1904),  96 

App.  Div.    (N.  Y.),  213,  89  N. 

Y.  Supp.  395.. 53. 
Hale    V.    Johnson    (1875),   80   111. 

185,  14  Am.  Neg.  Cas.  417,  n.. 

71,  206. 
Haley  v.  Lumber  Co.    (1892),  81 

Wis.  412,  51  N.  W.  321,  956. . 
Hallidav     v.     National     Tel.     Co. 

(1891'),  1  Q.  B.  221;   (1899),  2 

Q.  B.  392.. 45,  65. 
Haluptzok   v.    Great    Northern 

R.   (1893).  55  Minn.  446,  57  N. 

W.   144.    HufT.   Cas.   Agcv.    (2d 

ed.),  635.   26  L.  R.   A.   739.. 9. 
Hamilton  v.  Fond  du  Lac  (1876), 

40  Wis.  47..  146. 


Hamner  v.  Whaien,  see  Hawver. 
Haniford  v.  Kansas  City   (1890). 

103  iMo.  172,  15  S.  W.  753.. 67, 

139. 
Hannigan     v.     Union,     etc.,     Co. 

(1896),  3  App.  Div.  618,  38  N. 

Y.  Supp.  272.. 9. 
Hannon  v.  St.  Louis  Co.    (1876), 

62  Mo.  313..  19. 
Hannon     v.     Shepparton      (1892, 

Vict.),   14  Austr.  L.  T.  83.. 74. 
Hannon    v.    Siegel,    Cooper    Co. 

(1901),  167  N.  Y.  244,  60  N.  E. 

597,  52  L.  R.  A.  429.. 5. 
Plardaker  v.  Idle  District   (1896), 

1  Q.  B.  335..  13,  27,  50,  65,  142, 

184. 
Harden  v.  N.  Car.  R.  Co.  (1901), 

129  N.  C.  354,  40  S.  E.  184,  85 

Am.  St.  747.  55  L.  R.  A.  784. . 

126. 
Harder  v.  Buck,  etc.,  Co.   (1896), 

136  Mo.  3,  Zl  S.  W.  115..  180. 
Harding    v.    Boston    (1895),    163 

Mass.  14,  39  N.  E.  411.. 20,  22, 

27,  168. 
Hardy   v.   Rvle    (1829),  4   Mann. 

&  R.  295.. 36,  215. 
Hardy  v.  Sheddon  Co.  (1897),  47 

U.  S.  App.  362,  37  L.  R.  A.  33, 

78  Fed.  672.. 7. 
Hargadine   v.    Omaha,    etc.,    Co., 

see  Omaha,  etc.,  Co. 
Harkins    v.    Standard,    etc.,    Re- 

fmerv    (1877),   122  Mass.  400.. 

31. 
Harmon    v.    Columbia,    etc.,    R. 

(1888),  28  S.  C.  401,  5  S.   E. 

835,  13  Amer.  St.  686..  126. 
Harold.     The     (1884),     21     Fed. 

428.  .7,  57. 
Harper  v.   Milwaukee    (1872),  30 

W^isc.  365..  19,  20,  168. 
Harper     v.     Newport,     etc.,     R. 

(1890),  12  Kv.  L.  R.  333.  14  S. 

W.  346.. 381. 
Harrington   v.   Lansingburgh,   see 

Herrington. 
Harris   v.   McNamara    (1892),  97 

Ala.  181.  12  So.  103.. 32,  34,  38. 


XXX 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Harrison  v.  Collins    (1878),  86 

Pa.  St.  153,  27  Am.  R.  699..  16, 

34.  45.  56. 
Harrison  v.  Kiser  (1887),  79  Ga. 

588,  4  S.  E.  320.. 52,  95. 
Hart    V.    Ryan     (1889),    3    Silv. 

Sup.    Ct.    415.    6    N.    Y.    Supp. 

921.. 29. 
Hartwig   v.    Bay   State,   etc.,   Co. 

(1887),     43     Hun      (N.     Y.), 

425.. 8. 
Harvey    v     Hillsdale    (1891),    86 

Mich.  330,  49  N.  W.   141..  140. 
Hass  v.   Philadelphia,  etc.,  Co. 

(1879),  88  Pa.  269,  32  Am.  R. 

462. .29. 
Hastey    v.     Sears     (1892),     157 

Mass.    123,    31    N.    E.    759,    34 

Am.  St.  267.. 7. 
Hauser  v.  Metropolitan  Street  R. 

(1899),  58  N.  Y.  Supp.  286.  .71. 
Hawke  v.   Brown    (1898),   50   N. 

Y.  Supp.  1032,  28  App.  Div.  Zl, 

Hufif.  Cas.  Agcy.   (2d  ed.),  589, 

n..20,  57,  97,  163,  165,  206,  230. 
Hawver  v.   Wh.\len    (1892),   49 

Ohio  St.,  69,  29  N.  E.  1049,  14 

L.  R.  A.  828.. 26,  67,  92,  93. 
Hawxhurst  v.  New  York  (1887), 

43  Hun   (N.  Y.),  588..  144. 
Hay  v.  Cohoes    (1849),  2  N.  Y. 

159,  51  Am.  Dec.  279.. 73. 
Hearn  v.  Quillen   (1901),  94  Md. 

39,  50  Atl.  402..  19. 
Hearns  v.  W.-vterbury  Hospital 

(1895),  66  Conn.  98,  33  Atl.  595, 

31    L.    R.    A.    224,    Hufif.    Cas. 

Agcy.   (2d  ed.),  683..  149. 
Heaven  v.  Pender   (1883),  L.  R., 

11   Q.   B.   D.   503,  6  Am.   Neg. 

R.  479,  n,  7  Am.  Neg.  R.  624, 

n..206,  228. 
Hedge  v.   Williams    (1901),   131 

Cal.  455,  63  Pac.  721,  64  Id.  106, 

82  Am.  St.  366.. 31. 
Hefifernan  v.  Bernhard   (1863),  1 

Robt.   (N.  Y.),  436..  168. 
Hegeman  v.  Western  R.   (1853), 

16  Barb.  353;   (1855),  13  N.  Y. 

9,  64  Am.  D.  517..  133. 


Heidenag  v.  City  of  Philadelphia 

(1895),    168    Pa.    72,    21    Atl. 

1063..  46. 
Heizer   v.    Kingsland,    etc.,    Co. 

(1892),  110  Mo.  605,  19  S.  W. 

630,  33  Am.   St.  482,  15  L.  R. 

A.  821.. 224. 
Hepburn  v.  Phila.  (1892),  149  Pa. 

St.  335,  24  Atl.  279,  33  Am.  St. 

482,  15  L.  R.  A.  821..  139,  141. 
Herder,  see  Harder. 
Heriot's  Hospital  v.  Ross  (1846), 

12  CI.  &  F.  507..  149. 
Herrington      v.      Lansingburgh 

(1888),  36  Hun   (N.  Y.),  598, 

110  N.  Y.  145,  17  N.  E.  728,  6 

Am.  St.  348.-67,  73,  140. 
Hewett    V.    Woman's,    etc.,    Assn. 

(1906),  73   N.  H.  556,  64  Atl. 

190.. 149. 
Hexamerv.  Webb  (1896),  101  N. 

Y.  377,  4  N.  E.  755,  54  Am.  R. 

703,    Chase    C.    Torts,    240..  19, 

35,  45,  93. 
HiGGiNS  V.  Western  Union  Tel. 

Co.    (1898),   156   N.   Y.   75,   50 

N.  E.  500,  66  Am.  St.  537,  Burd. 

C.  Torts.  413,  n..7,  58. 

Hill  V.   Haves    (1908,   Mass.),  85 

N.  E.  434.. 92. 
Hill     V      New     River,     etc.,     Co. 

(1868),  9  B.  &  S.  303.. 67. 
Hill  v.  Schneider  (1897),  13  App. 

Div.  299,  43  N.   Y.   Supp.   1,   1 

Am.  Neg.  R.  141.. 73. 
Hill     V.     Tattenham     (1898),     79 

Law  T.— N.  S.  495..  141. 
HiLLiARD  V.   Richardson    (1855), 

3    Gray    (Mass.),   349,   63   Am. 

D.  743.-15,38,45,  46,  50,  51,  53, 
93,  116. 

Hilsdorf  v.  St.  Louis   (1869),  45 

Mo.  94,  100  Am.  Dec.  352.. 15, 

53.  67. 
HiNCK  V.  Milwaukee  (1879),  46 

Wise.  565,  1  N.  W.  230,  32  Am. 

R.  735.. 139,  141. 
Hinde  v.  Wabash,  etc.,  R.  (1853), 

15  111.  72.. 89,  90,  118,  124. 


TABLE   OF    CASES. 


XXXI 


[References  are  to  sections.] 


Hitte     V.     Republican,     etc.,     R. 

(1886),  19  Nebr.  620,  28  N.  W. 

284,  29  A.  &  E.  R.  Cas.  586.. 

120. 
Hoadley  v.  International,  etc.,  Co. 

(1899),  n  Vt.  79,  47  Atl.  169.. 

200,  201. 
HOFF    V.     S  HOCKLEY     (1904),     122 

Iowa,   720,  98   N.   W.   573,   101 

Am.   St.  289,  64  L.  R.  A.  538, 

16  Am.  Neg.  R.  607,  n..56,  90, 

93. 
Hoffner   v.    Prettyman    (1897),   6 

Pa.  Super.  Ct.  20.. 223. 
Hogan  V.  Arbuckle   (1902),  11  N. 

Y.  Supp.  22.. 206. 
Hole  v.  Sittingbourne  Railroad 

(1861),  6  H.  &  N.  488,  7  Am. 

Neg.  R.  157,  n.,  8  Am.  Neg.  R. 

301,  n..65,  66,  67,  70,  85,  86,  90, 

91,  92,  97,  183. 
Holland,  etc.,  Co.  v.  Baird  ( ), 

169  N.  Y.  136,  62  N.  E.  149.  .11. 

HOLLENBECK     V.     WiNNEBAGO     Co. 

(1880),  95  111.  148,  35  Am.  R. 

151.. 
Holliday    v.     National    Tel.     Co. 

(1899),  2  Q.  B.  392.. 67,  76,  85. 
Holmes    v.    Birmingham,    etc.,    R. 

(1904).    140    Ala.    208.    37    So. 

338.. 196. 
Holmes  v.   Northeastern,  etc.,  R. 

(1869),   L.   R.,  4  Exch.  254,  9 

Am.  Neg.  R.  569,  n..99. 
Holmes    v.    Tennessee,     etc.,    R. 

(1897),  49  La.  Ann.  1465,  22  So. 

403,   1    Amer.    Neg.   Rep.    174.. 

13,  19. 
Holt  V.  Whatlev    (1874).  51   Ala. 

569.. 21 5.  230. 
HoMAN    V.    Stanley    (1870),    66 

Pa.  St.  464.  5  Am.  R.  389.. 22, 

97. 
Hookev    V.    Oakdale     (1895),    29 

Pitts.  L.  J.— N.  S.  453.. 24. 
Hooper     v.     Southern,     etc.,     Co. 

(1903),  133  N.  C.  375.  45  S.  E. 

771 . . 196. 
Horner   v.    Nicholson    (1874),    56 

Mo.  220..  163,  219. 


llorton      V.      Vulcan,      etc.,      Co. 

(1897).  13  App.  Div.  508,  43  N. 

Y.  Supp.  699.. 38. 
Houghton     v.    Loma,    etc.,    Co, 

(1907),    152    Cal.    500,   93    Pac. 

82,  14  L.  R.  A.— N.  S.  913.. 73. 
Houston    v.    Isaacs    (1887),    68 

Tex.  116,  3  S.  W.  693..  175. 
Houston,     etc.,     R.     v.      Meador 

(1878),  50  Tex.  77.. 90,  93,  106, 

118. 
Houston,  etc.,  R.  v.  Van  Bayless 

(1876),    1     Wills.     (Tex.    Civ. 

App.),  247..  118. 
Howard    v.    Ludwig    (1902),    171 

N.  Y.  507,  64  N.  E.  172.  .29. 

HOWARTH     V.      McGUGAN      (1893), 

23  Ont.  R.  396,  47  Am.  &  Eng. 

Corp.  Cas.   133.. 53,  67,  141. 
Huey     V.     Indianapolis,     etc.,     R. 

(1873),  45  Ind.  320.. 122. 
Huff  v.  Ford   (1878),  126  Mass. 

24,  30  Am.  R.  645.. 7,  31. 
Huflf  V.  Watkins  (1880),  15  S.  C. 

85,  40  Am.  R.  680.  .34. 
Hughbanks    v.    Boston,    etc.,    Co. 

(1894),  90  Iowa,  267,  60  N.  W. 

640,  14  Am.  Neg.  Cas.  592,  n.. 

22,  28,  38. 
Hughes  V.  Bover  ( ),  9  Watts, 

556.. 49. 
Hughes    V.     Percival     (1883),     8 

App.  Cas.  443.. 65,  160. 
Hughes    V.    Railway    Co.    (1883), 

39  Ohio  St.  461,  15  A.  &  E.  R. 

C.  100.. 20.  67.  124,  168. 
Hughson  V.  Railroad  Co.   (1893), 

2  .\pp.   (D.  C),  98.. 38. 
llumpton  V.  Unterkircher  (1896), 

97  Iowa.  509,  66  N.  W.  776,  14 

Am.  Neg.  Cas.  595..  16,  22,  203. 
Hundhausen   v.    Bond    (1874),   36 

Wise.  29.. 66,  67. 
Hunt    V.    Boston,    etc.,    R.    (1908, 

Mass.),  85  N.  E.  446.. 202. 
Hunt  V.   Pennsylvania  R.    (1866), 

51  Pa.  St.  475.. 20,  116. 
Hunt    V.    Vanderbilt    (1894).    115 

N.  C.  559,  20  S.  E.  168.. 37,  11. 


K'X- 


XXXll 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Huntt  V.  McNamee  (1905).  72  C. 

C.  A.  441,  141  Fed.  293.  .72.  165. 
Huset  V.    Case,   etc.,   Co.    (1903), 

120  Fed.  865.. 224. 
Hvde  V.  Wilmore   (1895).   35   N. 

Y.  Supp.  681 . .  106. 


Illinois,  etc.,  R.  v.  Barron  (1866), 

5  Wall,  90..  126. 
Illinois,     etc.,     R.     v.     Buchanan 

(1907).  103  S.  W.  272,  31   Kv. 

L.  R.  722.. 149. 
Illinois,     etc.,      R.     v.     Finnigan 

(1859),  21   111.  646..  122,   124. 
Illinois,  etc.,  R.  v.  Cox    (1858), 

21  111.  20,  71  Am.  Dec.  298.. 7. 
Illinois,    etc.,     R.     v.     Kanouse 

(1866).    39    Ills.    272,    89    Am. 

Dec.   307..  122,   124. 
Illinois,  etc.,  R.  v.  Phillips  (1868). 

49  Ills.  234..  165. 
Indemaiir  v.  Dames    (1866),  1  C. 

P.  274,  6  Am.  Neg.  R.  479,  n., 

9  Id.  567,  n..99,  206. 
Independence,   see  City  of. 
Indiana,  etc.,  Co.  v.  Cray  (1897), 

19  Ind.  App.  565,48  N.  E.  803.. 

22,  34. 
IndianapoHs    v.     Marold     (1900), 

25  Ind.  App.  428,  58  N.  E.  512. . 

141. 
Ingram  v.  Barnes  (1857),  7  El.  & 

Bl.  115,  132.. 215. 
In  re,  see  name. 
International,  etc.,  R.  v.   Eckford 

(1888),   71   Tex.   274,  8   S.   W. 

679.. 126. 
International,    etc.,    R.    v.    Kuehn 

(1888),  70  Tex.   582,  8   S.   W. 

484.. 126. 
Interstate,  etc.,  Co.  v.  Fox  (1889), 

41    Kans.   715,  21    Pac.   797,   39 

A.  &  E.  R.  C.  318.. 203. 


Jackson  v.  Norfolk,  etc.,  R. 
(1897).  43  W.  Va.  380,  27  S. 
E.  278,  31  S.  E.  258,  46  L.  R. 
A.  337.. 27. 


Jacksonville  v.  Drew  (1882),  19 

Fla.  106.  45  Am.  R.  5..  141. 
Jacobs  v.  Fuller,  etc.,  Co.  (1902), 

67    Oh.    St.   70,   65   N.    E.   617, 

65  L.  R.  A.  833,  13  Am.  Neg. 

R.   208,   16   Id.   611,   n..70,   72, 

92,  160,  193,  208. 
James  v.  McMinimy    (1892),  93 

Kv.    471,   20    So.    435,    40   Am. 

St.    200,     15    Am.     Neg.     Cas. 

233,  n..73. 
James     v.     Phila.     Traction     Co. 

(1898),    185   Penn.   75,   39   Atl. 

889..  206. 
James  v.  San  Francisco   (1856), 

6  Cal.  528,  65  Am.   Dec.  526.. 

161. 
James  McNeil  &  Co.  v.  Crucible, 

etc.,    Co.    (1904),    207    Pa.    St. 

493,  56  Atl.  1067..  18,  76,  167. 
Jansen   v.   Jersey  City   (1898),  61 

N.  J.  L.  243,  39  Atl.  1025,  4  Am. 

Neg.  R.  313.. 53. 
Jaskoey  v.  Consolidated  Gas   Co. 

(1901),  67  N.  Y.  Supp.  976.. 20, 

22. 
Jehle  V.  Ellicott,  etc.,  Co.   (1898), 

31    App.    Div.    336,    52    N.    Y. 

Supp.  366.  .223. 
Jefferson    v.    Chapman    (1889), 

127   111.   438.   20   N.    E.    33,    11 

Am.  St.  139.. 53,  72,  79,  85,  92, 

139,  141. 
Jefiferson    v.    Jameson,    etc.,    Co. 

(1897).    165   111.   138,   46   N.   E. 

272.. 23,  51.   106,   107. 
Jensen     v.     Barbour     (1895),     15 

Mont.  582,  39  Pac.  906.  .20,  27. 
Jensen    v.    Waltham    (1896).    166 

Mass.  344,  44  N.  E.  339..  141. 
Jcssup    V.    Sloneker     (1891).    142 

Pa.  St.  527,  21  Atl.  988.  .215. 
Jewell  V.  Mt.  Vernon    (1904),  91 

App.  Div.  578.  87  N.  Y.  Supp. 

120..  53. 
Joel  V.  Woman's  Ho.spital  (1895), 

89  Hun    (N.  Y.).  73,  35  N.  Y. 

Supp.  37..  149. 
Johnson    v.    Ashland,   etc.,    Co. 

(1888),  71   Wis.  553,  37  N.  W. 

823.  5  Am.  St.  243.. 9. 


TABLE   OF    CASES. 


xxxm 


[References  are  to  sections.] 


John<;on    v.    Boston     (1875),    118 

Mass.  114..  7. 
Johnson  v.   Great   Northern,   etc., 

Co.     (1908),    93    Pac.    516,    48 

Wash.  325.. 29. 
Johnson    v.    Plelbing     (1907),    92 

Pac.  360,  6  Cal.  App.  424..  100. 
Johnson  v.  Lindsay  (1891),  A.  C. 

371.. 196. 
John.son    v.    Minneapohs,   etc.,    R. 

(1904),   140  Mich.  292,   103   N. 

W.  594.. 211. 
Johnson  v.   Netherlands,  etc.,  Co. 

(1892),    132   N.   Y.   576,   30   N. 

E.  505.. 7. 
Johnson    v.    Richmond,    etc.,    R. 

(1890),   86   Va.   975,    11    S.    E. 

829. .229. 
Johnson    v.    Spe.\r     (1889),    76 

Mich.   139,   15   Am.   St.  298.  42 

N.  W.  1092.. 20. 
John    Spry,    etc.,    Co.    v.    Dugpan 

(1898),  80  III.  App.  394;  (1899), 

182   111.   218,   54   N.    E.    1002.. 

196,  200,  206. 
Johnston  V.  Hastie   (1870),  30  U. 

C,  Q.  B.  232.. 20. 
Johnston  v.   Ott    (1893).   155   Pa. 

St.  17,  25  Atl.  751.. 57. 
Johnston    v.     Phoenix,    etc..    Co. 

(1901),  60  N.  Y.  Supp.  947,  169 

N.   Y.  581,  62  N.  E.   10%.. 70, 

110. 
JoLiET    V.    Harwood     (1877),    86 

111.  110,  29  Am.  R.  17.. 72,  IZ. 
Joliet   V.    Seward    (1877),   86   III. 

402.. 72. 
Joliffe    V.    Woodhouse    (1894,    C. 

A.).    10  Times   L.    R.  553..  103. 
Jones  V.   Bird    (1822),  5  Barn.  & 

Aid.  837.. 216. 
Jones  V.  Chantrv  (1874),  4  N.  Y. 

Sup.  Ct.  63..  168. 
Jones   V.    Corporation    (1885),    14 

Q.  B.  D.  890.. 38. 
Jones   V.    Mavor,   etc.    (1885),    14 

Q.   B.   D.  890.. 31. 
Jones    V.     Philadelphia    Traction 

Co.    (1898).   185   Pa.  St.   75.  39 

Atl.  889.  .223. 


Jones    v.     St.    Louis,    etc.,    Co. 

(1894),  125  Mo.  675,  28  S.  W. 

883,  26  L.  R.  A.  718,  46  Am.  St. 

514.. 135. 
Joseph,     John,     The     (1898),     86 

Fed.   471,   30  C.   C.   A.    199.. 7. 
JosLiN  V.  Grand  Rapids,  etc.,  Co. 

(1883),   50   Mich.   516,   45   Am. 

R.  54.. 7.  38. 
Juliet  v.  Harwood,  see  Joliet. 


Kahner     v.     Otis  .  Elevator     Co. 

(1904),  96  N.  Y.  App.  Div.  169, 

89  N.  Y.  Supp.  185.. 224. 
Kampmann   v.   Rothwell    (1908, 

Tex.),    109   S.   W.    1089,    17   L. 

R.   A.— N.    S.   258.. 20,   65,   92, 

229. 
Kane      v.      Mitchell,      etc.,      Co. 

(1895),  90   Hun,   65,   35   N.   Y. 

Supp.    581.    153    N.    Y.   680,   48 

N.  E.  1105.. 196. 
Kansas,    etc.,    R.    v.    Fitzsimmons 

(1877),   18  Kans.   34..  116,   118, 

119.  120. 
Kansas   Citv,   etc.,   R.    v.   Loosley 

(1907),  76  Kans.   103,  90   Pac. 

990.. 20. 
Karl   V.   Juniata   Co.    (1903),   206 

Pa.  St.  633,  56  Atl.  78.. 34. 
Kearney     v.     Oakes     (1890),     18 

Can.  S.  C.  148.. 36. 
Keegan    v.     Western     Railroad 

(1853),   8   N.    Y.    175,   59   Am. 

Dec.  476.  .67. 
Kelleher     v.     Schmitt,     etc.,     Co. 

(1904),    122   Iowa.   635,   98    N. 

W.   482,   16   Am.   Neg.   R.   609, 

n..20. 
Kellogg     V.     Pavne     (1866),     21 

Iowa,  575.. 34.  51,  67. 
Kellv  V.    tlowell    (1884),  41    Oh. 

St.  438.. 96. 
Kelly    V.    New    York    (1854),    11 

N.    Y.    432.    Huff.    Cas.    Agcy. 

(2d   ed.).   589.. 53,  67,   73,   166. 

168. 


XXXIV 


TABLE   OF   CASES. 
[References  are  to  sections.] 


Kelly  V.    New   York    (1905),    106 

App.  Div.  576,  94  N.  Y.  Supp. 

872. .53. 
Kelly  v.  Tyra  (1908),  103  Minn. 

176,   114  N.  W.   750,   17  L.   R. 

A.— N.  S.  334.. 9,  196,  198,  230. 
Kennedy  v.  Manhattan  R.  (1895), 

145  N.  Y.  288,  39  N.  E.  956.. 

193. 
Kentucky,     etc.,     Co.     v.     Bryan 

(1905).   27    Kv    L.   R.    136,   84 

S.  W.  537.. 203,  208. 
Kentucky,    etc.,    Co.    v.     Sydor 

(1904),    119  Ky.   18,  82   S.   W. 

183,  68  L.  R.  A.  183.. 210. 
Kenvon  v.   Chicago  City  Ry.  Co. 

(1908),  235   111.   406,  85   N.   E. 

660.. 91. 
Kepperly  v.  Ramsden    (1876),  83 

111.  354.. 72,  91. 
Kerr  v.  Atlantic,  etc.,  R.    (1895), 

25  Can.  S.  C.  197.. 66. 
Ketcham  v.   Cohn    (1893),   51    N. 

Y.   St.  R.  213,  22  N.  Y.   Supp. 

181.. 69. 
Ketcham  v.  Newman  (1894),  141 

N.    Y.    205.    36    N.    E.    197,    24 

L.  R.  A.  102.. 67,  69,  88,  92,  103. 
Ketterer    v.    Ky.    State    Bd.,    etc. 

( ,  Ky.),  115  S.  W.  200,  20 

L.  R.  A.— N.  S.  274..  149. 
Keys    V.    Second    Baptist    Church 

(1904),    99    Me.    308,    59    Atl. 

446,    17   Am.    Neg.    R.    516..  16, 

65. 
Khron  v.  Brock  (1887),  144  Mass. 

516.  11  N.  E.  748.-72,  173,  176, 

228. 
Kiddle   v.    Lovett    (1885),   L.   R., 

16  Q.  B.  D.  605..  184. 
Killea  v.  Faxon  ( ),  125  Mass. 

485.. 7. 
Kilrov     V.     Delaware,     etc.,     Co. 

(1890),  121  N.  Y.  22,  24  N.  E. 

192.. 207. 
Kimball  v.  Cushman  (1869),  103 

Mass.  194,  4  Am.  R.  528.. 7,  20. 
King     V.     Cleveland     (1885),     28 

Fed.  835..  141. 


King  V.  Livermore  (1876),  9  Hun 

(N.  Y.),  298;  (1277),  71  N.  Y. 

605.. 95. 
King  v.  Railroad  Co.   (1876),  66 

N.  Y.  181,  23  Am.  R.  37.  .45,  50, 

51,  102,  141,  168. 
Kinney  v.  N.  Car.,  etc.,  R.  (1898), 

122  N.  C.  961,  30  S.  E.  313..  126. 
Kinsley  v.  Lake  Shore,  etc.,  R. 

(1874),  125  Mass.  54,  28  Am.  R. 

200.. 133,  135. 
Kirbv    V.    Lackawanna,    etc.,    Co. 

(1905),    109  App.   Div.   .334,  95 

N.  Y.   Supp.  833.. 38. 
Kirk  V.   Homer    (1894),   11  Hun, 

459,  28  N.  Y.  Supp.  1009.. 141. 
Kitchen  v.  Riter,  Conley,  etc.,  Co. 

(1904),    207    Pa.    St.    558,    56 

Atl.  1083..  18,  225. 
Klages  v.  Gillette,  etc.,  Co.  (1902), 

86  Minn.  458,  90  N.  W.  1116.. 

29. 
Klepsch  v.  McDonald   (1892),  4 

Wash.  436,  30  Pac.  991,  8  Wash. 

162,   35    Pac.   621,   31    Am.    St. 

936.  JZ. 
Knicely  v.  West  Virginia,  etc., 

R    (1908,  W.  Va.),  17  L.  R.  A. 

— N.   S.  371,  61   S.   E.  811..  18, 

27,  205. 
Knight  V.  Fox  (1850),  5  Exch.  71, 

20  L.  J.  Ex.  9.. 51,  57. 
Knottherus  v.  North,  etc.,  S.  R. 

Co.  (1892),  93  Mich.  348,  53  N. 

W.  529,  17  L.  R.  A.  726.. 98. 
Knowhon  v.   Hoit    (1891),  67  N. 

H.  155,  30  Atl.  346..  16,  72. 
Knoxville,    etc.,    Co.    v.    Dodson 

(1881),  7  Lea.  (Tenn.),  367.  .16. 
Koch   v.    Fox    (1892),   75    N.   Y. 

Supp.  913.. 90. 
Koch  v.  Sackman,  etc.,  Co.  (1894), 

9  Wash.  405,  37  Pac.  763.. 95. 
Kollock     V.      City     of     Madison 

(1893),  84  Wise.  458,  54  N.  W. 

725.. 69,   141,  218. 
Koontz    V.    District    of    Columbia 

(1904,  D.  C),  24  App.  59.. 53. 


TABLE   OF    CASES. 


XXXV 


[References  are  to  sections.] 


Korn   V.   Weir   (1904),  88  N.   Y. 

Supp.  976,  16  Am.  Neg.  R.  611, 

n . .  100. 
Krause  v.  Sacramento   (1874),  48 

Cal.  222..  161. 
Krulder  v.  Woolverton  (1895),  11 

Misc.    (N.   Y.),   537,   32   N.   Y. 

Supp.  742,  152  N.  Y.  638,  46  N. 

E.  1148.. 196. 
Kueckel  v.  Rvder   (1900),  170  N. 

Y.  562,  —  N.  E.  ..16,  34. 

Kuehn   v.    Milwaukee    (1896),  92 

Wise.  263,  65  N.  W.  1030.. 53. 
Kuelling    v.    Roderick,    etc.,    Co. 

(1903),  88  N.  Y.  App.  Div.  309, 

84  N.  Y.  Supp.  622.. 224. 


Lacour   v.    New   York    (1854),    3 

Duer,  406..143. 
Lacy  v.  GETM.^N    (1890),   119  N. 

Y.   112,  23  N.   E.  452,  6  L.  R. 

A.  728,  16  Am.  St.  806.. 38. 
LaGroue  v.  New  Orleans  (1905), 

114  La.  253,  38  So.  160.. 53. 
Lake     Erie,     etc.,    R.    v.     Griffin 

(1883).   92   Ind.   487..    (1886), 

107  Ind.  464..  124. 
Lake  Superior,  etc.,  Co.  v.  Erick- 

SON    (1878),    39   Mich.   492,   33 

Am.  R.  423.. 96,  207. 
Lakin  v.  Oregon,  etc.,  R.   (1887), 

15  Ore.  220,  15  Pac.  641.. 9. 
Lakin    v.    Willamette,    etc.,    R. 

(1886),  13  Ore.  436.  11  Pac.  68. 

57  Am.  R.  25..  118. 
Lancaster    v.    Greaves    (1829),    9 

Barn.  &  C.  628.. 36. 
Lancaster     v.     Insurance     Co. 

(1887),   92   Mo.   460,   5    S.   W. 

23,  1  Am.  St.  739.  .92,  97. 
Lancaster     Av.,     etc.,     Co.     v. 

Rhoads  (1887),  116  Pa.  St.  377, 

9  Atl.  852,  2  Am.   St.  608.. 75, 

134.  141.  151.  163,  164. 
Langen  v.  Tyler  (1902).  114  Fed. 

716,  51  C.  C.  A.  503.. 9. 


Langley    v.    R.    Co.     (1857),    10 

Gray  (Mass.),  103..  126. 
Langridge     v.     Levy     (1837),     2 

Mees.  &  W.  519,  4  Id.  337.. 91. 
Larock    v.    Ogdensburgh,    etc.,   R. 

(1882),  26  Hun.  382.. 209. 
Larow  v.   Clute    (1891),  60  Hun, 

580.  14  N.  Y.  Supp.  616.. 92. 
Larson    v.    American,    etc.,    Co. 

(1905),  40  Wash.  224.  82  Pac. 

294,  11  Am.   St.  904..  196. 
Larson   v.    Metropolitan    St.   R. 

(1892),  110  Mo.  234,  19  S.  W. 

416,  33  Am.  St.  R.  439,  16  L.  R. 

A    330,   45   Alb.    L.   J.    514,   34 

Cent.  L.  J.  51 3..  19,  20,  52.  95, 

168. 
Lasker,    etc.,    Assn.    v.     Hatcher 

(1894,   Tex.   Civ.   App.),  28   S. 

W.  404..  106.  109. 
Latorre     v.     Central,     etc.,     Co. 

(1896),  9  App.  Div.  145,  41  N. 

Y.  Supp.  99.-29. 
Laubheim    v.    Royal,    etc..    Co. 

(1887),  107  N.  Y.  228,  13  N.  E. 

781,  1  Am.  St.  815..  165. 
Laugher  v.  Painter  (1826),  5  B.  & 

C.  547.. 49.  50. 
Lauro  v.  Standard  Oil  Co.  (1902), 

74  App.  Div.  4,  76  N.  Y.  Supp. 

800.. 7. 
Lawrence   v.    Great    Northern    R. 

( ),  16  Q.  B.  643.. 217. 

Lawrence  v.   Shipman    (1873).   39 

Conn.    586,    Huff.     Cas.    Agcy. 

(2d    ed.),    596.. 38,   45,   65.    95, 

106,  164,  168. 
Leader  v.  Moxan  (1773).  3  Wils. 

461,  2  W.  Bl.  924.. 20. 
Leavitt     v.      Bangor,     etc.,     R. 

(1897),  89  Me.  509,  36  Atl.  998, 

36  L.  R.  a.  382,  7  A.  &  E.  Ry. 

Cas.  354,  1  Am.  Neg.  R.  605.. 

28,  74,  118. 
Lebanon  Light,  etc..  Co.  v.  Leap 

(1894),  139  Ind.  443,  39  N.  E. 

57.. 85. 
Leber    v.     Minneapolis,     etc.,     R. 

(1882).  29  xMinn.  256,  13  N.  W. 

31..  67. 


XXXVl 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Leeds    v.    Richmond    (1885),    102 

Ind.  Zll,  1  N.  E.  711..  160. 
LeMaitre  v.  Davis   (1881),  L.  R., 

19  Ch.  Div.  281.. 95. 
Lendberg  v.  Brotherton,  etc.,  Co. 

(1889).  75  Mich.  84,  42  N.  W. 

675.. 205. 
Lenderink    v.    Rockford     (1904), 

135  Mich.  531,  98  N.  W.  4,  16 

Am.   Neg.  R.  614,  n..22. 
Lennox  v.  Harrison   (1858).  7  U. 

C.  C.  P.  496.. 36. 
Lesher    v.     Wabash,    etc.,     Co. 

(1852),  41   111.  85,  56  Am.  Dec. 

494..  89.  118.  124. 
Leslie  V.  Pounds  (1812),  4  Taunt. 

649.. 49. 
Leslie    v.     Rich     Hill,     etc.,     Co. 

(1892),   113   Mo.  31,  19  S.   W. 

308..  180. 
Levenite  v.  Lancaster  (1906),  215 

Pa.  576,  64  Atl.  782..  141. 
Liebold   v.   Green    (1897),   69   111. 

App.  527.. 206. 
LiNNEHAN  V.  Rollins  (1884),  137 

Mass.  123,  50  Am.  R.  287,  Huff. 

Cas.  Agcy.  (2d  ed.),  587,  Burd. 

Cas.    Torts,   400.    15    Am.    Neg. 

Cas.  666,  n . .  19,  27. 
Linton  v.   Smith    (1857),  8  Gray 

(Mass.),  147..  16.  34. 
Lisnacrieve,  The   (1898),  87  Fed. 

570..  7. 
Little  V.   Hackett    (1885),   116  U. 

S.  366.. 38. 
Littledale  v.    Lonsdale    ( ),   2 

H.  Bl.  267.. 49. 
Lockwood  V.   New  York    (1858), 

2    Hilt.     (N.    Y.),    66.. 67,    70, 

142. 
Logan  V.   N.  Car.  R.  Co.    (1895), 

116  N.   C.  940,  21   S.   E.  959.. 

126. 

LOGANSPORT    V.     DiCK     (1880),     ^Q 

Ind.  65.  36  Am.  R.  166.  .67,  11. 

93. 
Long   V.    Moon    (1891),    107    Mo. 

3.34,  17  S.  W.  810. 
Longg  V.  Stanley,  etc.,  Co.  (1903), 

69  N.  J.  L.  31,  54  Atl.  251.. 9. 


Lookout    Mt..    etc.,    Co.    v.    Lea 

(1906),    144    Ala.    169,    39    So. 

1017,  42  A.  &  E.  Rv.  Cas.  10. . 

196. 
Loop    v.    Litchfield    (1870),    42 

N.  Y.  351,  1   Am.  R.  543.. 224. 
Lord  V.  Spielman  (1898),  29  App. 

Div.  292,  51   N.  Y.  Supp.  534.. 

38. 
LosEE  V.    Buchanan    (1873),   51 

N.    Y.    476,    10    Am.    R.    623, 

Chase's     Cas.     Torts     (Supp.), 

15.. 165. 
LosEE  V.  Clute   (1873),  51  N.  Y. 

494,  10  Am.  R.  638,  Chase's  Cas. 

Torts  (Supp.),  4.. 224. 
Lough  rain      v.      Autophone      Co. 

(1902),  n  N.  Y.  App.  D.  542, 

78  N.  Y.  Supp.  919.. 38. 
Louisville,    etc.,    R.    v.    Cheatham 

(1907),    118   Tenn.    160,    100   S. 

W.  902.. 38. 
Louisville,    etc.,    R.    v.    Conroy 

(1886),   63   Miss.    562,   56   An. 

R.  810.. 38. 
Louisville,    etc.,    R.    v.    Katzen- 

berger  (1886),  16  Lea.  (Tenn.), 

380,  57  Am.  R.  232..  135. 
Louisville,     etc.,     R.     v.     Tow 

(1901),   23   Ky.    L.    R.   408,   63 

S.   W.  27.  66  L.  R.  A.  941,  21 

A.  &  E.  Rv.  Cas.— N.  S    441.. 

18,  20,  22,  164,  169. 
Louisville  University  v.  Hammock 

(1907,   Ky.),   106   S.    W.   219.. 

149. 
Louthern    v.    Hewes    (1902),    138 

Cal.   116,  70  Pac.  1065,  16  Am. 

Neg.  R.  613,  n..26,  56. 
Lowell     v.     Boston,     etc.,      R. 

(1839),  23  Pick.  (Mass.),  24,  34 

Am.   Dec.  33.. 47,  70.   116,   124, 

125. 
Lvtle  V.  Conover  Bldg.  Co.  (1902), 

12  Oh.   Dec.  346,  11   Am.   Neg. 

R.  641,  n..65. 

M 

Mabev  &  Cooper,  The   (1871),  14 
Wall.   (U.  S.),  204.. 38. 


TABLE   OF    CASES. 


XXXVU 


[References  are  to  sections.  1 


MacDonald    v.    O'Reilly    (1904), 

45    Ore.   589,   78    Pac.    753.  .34, 

220. 
MacDonald   v.    Wyllie    (1898),    1 

Sc.  Sess.  Cas.   (5th  ser.),  339.. 

184. 
Macfie  V.   Hutchinson    (1887),   12 

Ont.  Pr.  Rep.  167.. 215. 
Machu  v.  London,  etc..  R.  (1848), 

2   Exch.  415,   5   Eng.   Ry.   Cas. 

302.. 138. 
Macon,  etc.,  R.  v.  Mayes  (1873), 

49  Ga.  355,  15  Am.  R.  678..  197, 

210. 
Madigan    v.    Wellington,    etc.,    R. 

(1883),  N.  Zeal.  L.  R..  2  S.  C. 

209.. 72. 
Magdaline,   The    (1898),  91    Fed. 

798.. 141. 
Magee   v.   Troy    (1888),  48  Hun, 

383,  1   N.   Y.   Supp.  541..  141. 
Maguire  v.  Magce  (1888,  Pa.),  13 

Atl.  551.. 225.  230. 
Mahanev   Tp.   v.    Scholly    (1877). 

84  Pa!  136..  161. 
Mahar  v.  Steur  (1898),  170  Mass. 

454,  49  N.  E.  741..  171. 
Mahon  v.  Burns  (1894),  29  N.  Y. 

Supp.  682,  34  Id.  91..  106. 
Mahoney  v.  Dankwert  (1899),  108 

Iowa,  321,  79  N.  W.  134.. 74. 
Maloney    v.    Bradley     (1891),    14 

N.  Y.  Supp.  794;  (1892),  18  Id. 

757..  109.  229. 
Maltbie  v.  Bolting  (1893),  6  Misc. 
(N.  Y.).   339,  26  N.   Y.   Supp. 

903.. 92. 
Mamer  v.  Lussem   (1872),  65  111. 

484.. 70. 
Manchester  v.  Warren   (1893),  67 

N.  H.  482,  32  Atl.  763.. 78. 
Manhattan  R.  v.  Cornell    (1891), 

7  N.   Y.   Supp.   557.   130  N.  Y. 

637,  29  N.  E.  151.. 229. 
Mann  v.  O'Sullivan  (1899),  126 

Cal.  61.  58  Pac.  375,  77  Am.  St. 

149..  37. 
Mansfield,    etc..    Co.    v.    McEnery 
(1879),  91  Pa.  St.  185..  110. 


Mappin  v.  Washington  Co.  (1893), 

92  Ga.  130,  17  S.  E.  1009..  161. 
Maria.    The    (1839),    1    W.    Rob. 

95..  38. 
Marrow     v.      Flimby,     etc.,     Co. 

(1898),  2  Q    B.  588.. 205. 
Marsh   v.    Hand    (1890),    120   N. 

Y.  315,  24  N.  E.  463. 
Marsh   v.    Philadelphia    (1894).  8 

Pa.  Dist.  Rep.  340.. 72,  88. 
Martin     v.     Tribune     Association 

(1883),  30  Hun  (N.  Y.),  291.. 

22,  92. 
Martin     v.      Sunlight,     etc.,     Co. 

(1896),  17  New  So.  Wales,  L. 

R.  364.. 206. 
Martin  v.  Temperly   (1843),  4  Q. 

B.  295.. 8,  38. 
Marvin,  etc.,  Co.  v.  Ward  (1883), 

46  N.  J.  L.  19.. 224. 
Mary,  The  (1879),  L.  R.,  5  Prob. 

Div.  14..  38. 
Mason  v.  Tower  Hill  Co.  (1895), 

83  Him  (N.  Y.),  479,  32  N.  Y. 

Supp.  36.. 206,  208. 
Massev  v.  Oates  (1905),  143  Ala. 

248,  39  So.  142.. 92. 
Mathenv     v.     Wolffs     (1865),     2 

Duv.  (Ky.),  137.. 67. 
Mathes  v.  Kerrigan  (1886),  53  N. 

Y.  Super.  431.. 200. 
Matthews   v.    West   London,   etc., 

Co.  (1813),  3  Campb.  403..47. 
Mattise   v.    Manufacturing   Co. 

(1894),    46    La.    Ann.    1535.    15 

So.  400,  49  Am.  St.  356.  .85. 
Mauer  v.  Ferguson  (1892),  17  N. 

Y.  Supp.  349.. 223. 
Mavhew     v.     Sullivan,     etc.,     Co. 

("1884).    76    Me.    100,    15    Am. 

Neg.  Cas.  296,  n..20,  201. 
Mavor,  etc.,  v.  McCarv  (1887),  84 

Ala.  469,  4  So.  630.. 72,  141. 
IMeany  v.  Abbott  (1867),  6  Phila. 

(Pa.),  256..  106. 
Mefford     v.     Louisville,     etc.,    R. 

(1892),    14   Ky.    L.   R.   327,  20 

S.  W.  263.. 28,  38. 


XXXVlll 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Meier    v.     Morgan     (1892).     82 

Wise.  29.  52  N.  W.  174.  33  Am. 

St.  39.. 70,  163,  168,  190. 
Meier   v.    Pennsylv.ania    R.    Co. 

(1870).   64   Pa.  228,  3  Am.   R. 

581 . . 133. 
Memphis     v.     Lasser     (1849),     9 

Humph.  (Tenn.),  1..47. 
Mersev.  etc..  Co.  v.  Gibbs  (1864), 

L.  R..  1  H.  L.  93..  13,  149. 
Methodist    Episcopal    Church    v. 

Rensh   (1857),  7  Oh.  St.  369.. 

226. 
Metropolitan,     etc.,     R.     v.     Dick 

(1900),  87  111.  App.  40..  115. 
Metzinger  v.  New  Orleans  Board, 

etc.  (1907),  120  La.  124,  44  So. 

1007.. 38. 
Mever  v.  Ken  von,  etc.,  Co.  (1905), 

95  Minn.  329,  104  N.  W.  132.. 9. 
Mever   v.    Midland   R.    (1873),   2 

Nebr.  391.. 85. 
Meyers  v.  City  of  Philadelphia 

(1907),  217  Pa.  St.  159,  66  Atl. 

251,  10  L.  R.  A.— N.   S.  678.. 

143. 
Mevers  v.  Easton   (1878),  4  Vict. 

L.  R.  283.. 109. 
Meyers  v.   Snider   (1848),  Bright 

(Pa.),  489.. 47. 
Mevers    v.     Syndicate,    etc.,     Co. 

('l907),   47   Wash.   48,   91    Pac. 

549.. 38. 
Michael     v.     Alestree     (1677),     2 

Lev.   172,  3  Keb.  650..  10. 
Michael     v.     Stanton     (1875),     3 

Hun  (N.  Y.),  462.. 21. 
Mickee  v.  W.  A.  Wood,  etc.,  Co. 

(1894),   V  Hun    (N.   Y.),  559, 

28  N.  Y.  Supp.  918..  189. 
Miller   v.    Lasher    (1890),    37    111. 

App.  609.. 69. 
Miller  v.  Merritt,  etc.,  Co.  (1905), 

211  Pa.  127,  60  Atl.  508.  .23. 
Miller    v.    Minnesota,    etc.,    R. 

(1888),  76  Iowa,  665;  39  N.  W. 

188,  14  Am.  St.  258,  38  A.  &  E. 

R.  Cas.  234.. 38,  55. 
Miller  v.  Moran,  etc.,  Co.  (1905), 

39  Wash.  631,  81   Pac.   1089,   1 


L.   R.   A.— N.    S.   283..  18,    193, 

230. 
Miller  V.  Railroad  Co.  (1890),  125 

N.  Y    118,  26  N.  E.  35..  126. 
Milligan    V.    Wedge     (1840),    12 

Ad.   &  E.   737.. 34,   38,  49,  50, 

207. 
Mills   V.    Holton    ( ),  2   Hurl. 

&  N.  14.. 106. 
Mills  V.  Thomas,  etc.,  Co.  (1900), 

54  App  Div.  124,  66  N.  Y.  Supp. 

398,  65   N.  E.   1119,  172  N.  Y. 

660..  7. 
Minor  v.   Clark    (1889),  8   N.   Y. 

Supp.  616.  .225. 
Mitchell   V.    Southern   R.    (1903), 

24   Kv.    L.   R.   2388,   74   S.   W. 

216.. 229. 
M'Lean  v.  Russell  (1850),  12  Sc. 

Sess.    Cas.    (2d    sen),   887.. 57, 

93,  164. 
Moffett  V.  Koch    (1901),   106  La. 

371,  31  So.  40..  16. 

Mohr  V.  McKenziem  (1895),  60 
111.  App.  575.. 230. 

Moline  v.  McKinnie  (1888),  3D 
III.  App.  419.. 93. 

Montgomery,  etc.,  Co.  v.  Mont- 
gomery, etc.,  R.   (1888),  86  Ala. 

372,  5  So.  735..  126. 
Montgomery     St.     R.     v.     Smith 

(1905),    146    Ala.    316,    39    So. 

757,  42  A.  &  E.  Ry.  C— N.  S. 

131.. 72. 
Moore  v.  Gimson  (1889).  5  Times 

L.  R.  177.. 189. 
MooKE     V.     Sanborn     (1853),     2 

Mich.  519,  59  Am.  Dec.  209.. 34, 

57. 
Moore  v.  Stainton  (1903),  80  App. 

Div.  295,  80  N.   Y.   Supp.  244, 

177  N.  Y.  581,  59  N.  E.  1127.. 

30. 
Moore    v.    Townsend    (1899),    76 

Minn.  64,  78  N.  W.  880..  176. 
Moran  v.  Carlson  (1904),  95  App. 

Div.     116,     88     N.     Y.     Supp. 

520.. 7. 
Moran     v.     Corliss,     etc.,     Co. 

(1899),  21  R.  I.  386,  43  Atl.  874, 

45  L.  R.  A.  267..  110,  186. 


TABLE   OF    CASES. 


XXXIX 


[References  are  to  sections.] 


Morgan   v.    Bowman    (1856),    22 

Mo.  538.. 21,  34. 
Morgan    v.     Smith     (1893),     159 

Mass.  570,  35  N.  E.  101,  15  Am. 

Neg.  Cas.  667,  n.  .19,  20,  34,  196. 
Morrell  v.  Rheinfrank   (1885),  24 

Fed.  94.. 207. 
Morris   v.    Androscoggin    R.    Co. 

(1855),    39    Me.    274,    63    Am. 

Dec.  621.. 228. 
Morton  v.  Detroit,  etc.,  R.  (1890), 

81    Mich.  423,  46  N.   W.   111.. 

188 
Morton  v.  Thurher  (1881),  85  N. 

Y.  550.. 106. 
Morton  v.  Union  Tr.  Co.   (1902), 

20  Pa.  Super.  Ct.  325.. 229. 
Mound   Citv,   etc.,   Co.  v.   Conlon 

(1887),   92   Mo.   221,  4   S.    W. 

922.. 20. 
Mulchey    v.    Methodist,    etc..    So- 
ciety   (1878),   125   Mass.  487.  6 

Reptr.   751.    15  Am.    Neg.   Cas. 

661.  n..99,  176.  209. 
MuLL.'VN    V.    Philadelphia,    etc., 

Co.    (1875),  78  Pa.  25,  21  Am. 

R.  2.. 29. 
Mullen  v.  St.  John   (1874),  57 

N.  Y.  567,  15  Am.  R.  530..  103. 
Mullich    V.    Brocker    (1905).    119 

Mo.  App.  332.  97  S.  W.  549.. 16. 
Mullins  V.  Siegel.  etc.,  Co.  (1904), 

88  N.  Y.  Supp.  IZl;  (1905),  183 

N.  Y.  129,  75  N.  E.  1112.. 66,  92. 
Mumby    v.    Bowden     (1889),    25 

Fla.  454,  6  So.  453..  19,  26,  106. 
Munroe   v.    Fred    T.    Ley   &    Co. 

(1907),  156  Fed.  468.. 33. 
Murphy    v.    Altman     (1884),    28 

App.  Div.  472,  51   N.  Y.  Supp. 

106.  .206. 
Murphy     V.     Caralli      (1864),     3 

Hurl.  &  C.  462.. 207. 
Murphv    V.    Lowell     ( ),    124 

Mass.  564.. 73. 
Murphy    v.     Ottawa     (1887),     13 

Ont.  334.. 22. 
Murphy    v.    Perlstein    (1902),    76 

N.  Y.  Supp.  657.. 93. 


Murray  v.  Arthur    (1901),  98  111. 

App.  331.. 69,  85,  100. 
Murrav  v.   Currie    (1870).   L.   R.. 

6  C.  P.  24.. 46. 
Murray   v.    Dwight    (1900),    161 

N.  Y.  301,  55  N.  E.  901.  48  L. 

R.  A.  673,  Huff.  Cas.  Agcy.  (2d 

ed.),  620.. 4,  13,  31,  38. 
Murray     v.     Lehigh,     etc.,     R. 

(1895).   66   Conn.    512,   34  Atl. 

506,  32  L.  R.  A.  539..  134. 
Murrav    v.     Pawtucket,    etc.,    R. 

(1903).   25    R.    T.    209,   55    Atl. 

491.. 133. 
Murtfelt  V.  N.  Y.,  etc.,  R.  (1886), 

102  N.  Y.  702,  25  A.  &  E.  R. 

Cas.  144.  .66,  124. 
Myer   v.    Hobbs    (1876).   57   Ala. 

175,  29  Am.  R.  719.. 72. 
Myers  v.  Holborn   (1895),  58  N. 

J.  L.  193,  33  Atl.  389.  30  L.  R. 

A.  345,  55  Am.  St.  606.. 38. 
Mynard    v.    Syracuse,    etc.,    R. 

(1877).  71   N.  Y.   180,  27  Am. 

R.  28.. 229. 


Mc 

McAllister   v.   Albany    (1890),   18 

Ore.  426,  23  Pac.  845..  140. 
McAllister  v.  Burgess  (1894).  161 

Mass.  271.  37  N.  E.  173..  149. 
McBeath  v.  Rawle  (1901),  93  111. 

App.  212..  180. 
McCafferty  v.  Spuyten  D.,  etc., 

R    (1874).  61  N.  Y.  178.  19  .\m. 

R.  267.. 50.  65,  72,  73.  116,  120. 
McCaffrey  v.  Mossberg,  etc.,  Co. 

(1901),  23  R.  L  381.  50  Atl.  651. 

91    Am.    St.    637,   55   L.    R.    A. 

822.. 224. 
McCall  V.  Pacific,  etc.,  Co.  (1898), 

123  Cal.  42,  55  Pac.  706..  193. 
McCamus    v.    Citizens,    etc.,    Co. 

(1863).  40  Barb.  (N.  Y.),  381.. 

32.  176. 
McCann    v.    Kings    Co.,    etc.,    R. 

(1892),  46  N.  Y.  St.  R.  327,  19 

N.  Y.  Supp.  668.. 55. 


xl 


TABLE   OF    CASES. 


[References  are  to  sections.] 


McCann  v.  Waltham   (1895),  163 

Mass.  344,  40  N.  E.  20..  141. 
McCarrier  v.   Hollister    (1902), 
15  S.  D.  366,  89  N.  W.  862,  91 
Am.    St.   695.   11    Am.    Neg.  R. 
641.. 67,  75,  93. 
McCarthy     v.     Second     Parish 
(1880),  71  Mo.  318,  36  Am.  R. 
320.. 38.  93. 
McCarthy    v.    Yomig    (1861).  16 

Hurl.  &  N.  329..  183. 
McCartv  v.   Muir   (1893),  50  111. 

App.  5 10.. 38. 
McClammv  v.  Spokane  (1904),  36 

Wash.  339,  78  Pac.  912..  140. 
McCleary  v.  Kent  (1854),  3  Duer, 

27..  22. 

McColligan    v.     Pennsylvania    R. 

Co.   (1906),  214  Pa.  St.  229.  53 

Atl.  792,  6  L.  R.  A.— N.  S.  544, 

112  Am.  St.  739.. 7. 

McCoRD  V.  Western  Union  Tel. 

Co.  (1888),  39  Minn.  181,  39  N. 

W.  315,  1  L.  R.  A.  143,  12  Am. 

St.  636,  Huff.  Cas.  Agcy.  306.  .6. 

McCoy   V.    Kansas    City,    etc.,   R. 

(1889),  36   Mo.  App.  445..  126. 

McDermott  v.  McDonald   (1894), 

55  111.  App.  226..  106. 
McDonald,  see  aso,  MacDonald. 
McDonald     v.     Massachusetts, 
ETC.,  Hospital  (1876),  120  Mass. 
432,  21  Am.  Rep.  529..  149. 
McDonald  v.  Morrison  (1898),  15 

Qucb.  Sup.  Ct.  143.. 227. 
McDonnell     v.     Rifle,     etc.,     Co. 
(1888),  71   Mich.  61,  38  N.  W. 
681.. 69. 
McDonough  v.    Pelham,  etc.,   Co. 
(1906),  111  App.  Div.  585,  98  N. 
Y.  Supp.  90.. 7. 
McDowell   V.    H.    Ramsdell,    etc., 
Co.  (1894),  78  Hun,  228,  28  N. 
Y.  Supp.  821.. 38. 
McElroy    v.    Nashua,    etc.,    R. 
(1849),  4  Cush.  (Mass.),  400,  50 
Am.  D.  794..  134. 
McElroy  v.    Australian,    etc.,    Co. 
(1899),  24  Vict.  L.  R.  953.. 33. 


McEnany  v.  Kyle  (1887),  14  Daly, 

268.. 189. 

McEvoy    V.     Saulte     Ste.     Marie 

(1904),  136  Mich.  172,  98  N.  W. 

1000.. 140. 

McFadden  v.  Jewell  (1903).  119 

Iowa,  321,  93  N.  W.  202,  60  L. 

R.  A.  401,  97  Am.  St.  321.. 53. 

McGuire  v.  Grant    (1856),  25   N. 

J.  L.  356,  67  Am.  Dec.  49. 
McHarge   v.    Newcomer    (1907), 
117  Tenn.  595,  100  S.  W.  700,  9 
L.  R.  A.— N.  S.  298..  16,  27,  65, 
79,92. 
Mclnerny    v.    Delaware,    etc.,    R. 
(1897),   151    N.   Y.  411,  45   N. 
E.  848.. 7. 
Mclnnulty  v.  Primrose  (1897),  24 
Sc.  Sess.  Cas.   (4th  ser.),  442.. 
189. 
Mclntyre     v.     Boston,     etc.,     R. 
(1895),  163  Mass.  189,  39  N.  E. 
1012.. 110. 
Mclntyre   v.    Gallach    (1883),    11 
Sc.   Sess.   Cas.    (4th  sen),  64.. 
176. 
McKenna  v.  Kimball   (1888),  145 

Mass.  555,  14  N.  E.  789..  15. 
McKeon  v.   Bolton    (1851),  1    Ir. 

C.  L.  Rep.  377.. 35. 
McKeon  v.  Louis  Weber,  etc.,  Co. 
(1903),   84   N.   Y.    Supp.  913.. 
201. 
McKinley    v.     Chicago,     etc.,    R. 
(1890),   40   Mo.    App.    449.. 85, 
171. 
McLaughlin    v.    New    York,    etc., 
Co.   (1894),  7  Misc.  119,  24  N. 
Y.  Supp.  248.. 38. 
McLean,  see  M'Lean. 
McLean    v.    Burbank    (1866),    11 

Minn.  277..  133. 
McMillan    v.    Walker    (1881),    21 

N.  B.  31.. 163. 
McMullen  v.  Hoyt  (1867),  2  Daly 

(N.  Y.),  271.. 38. 
McxMullen   v.    New   York    (1905), 

93  N.  Y.  Supp.  772.. 22. 
McNamee  v.  Hunt  (1898),  87  Fed. 
298.. 73. 


TABLE   OF    CASES. 


xli 


[References  are  to  sections.] 


McNulty   V.   Ludwig    (1908),    109 

N.  Y.  Supp.  703.. 79. 
McPadden  v.  New  York,  etc.,  R. 

(1871),  44  N.  Y.  478,  4  Am.  R. 

705.. 133. 
McWilliams  v.    Detroit,    etc.,   Co. 

(1875),  31  Mich.  274.. 90. 


Nahm     v.     Register,     etc.,     Co. 

(1905),   120  Ky.  485,  87  S.  W. 

296,  9  Am.   &   Eng.   Ann.   Cas. 

209..  106,  107,  109. 
Nashville   v.    Brown    (1871),   9 

Heisk.    (Tenn.),   1,  24  Am.  R. 

289.. 47,  53,  141. 
National  Bank  v.  Atlanta,  etc.,  R. 

(1886),  25  S.  C.  220..  126. 
National,  etc.,  Co.  v.  Foster,  etc., 

Co.  (1908,  Ind.),85  N.  E.  489. . 

202. 
Necher     v.     Harvev     (1883),     49 

Mich.  518,  14  N.  W.  503.. 224. 
Negus  v.   Becker   (1894),  143  N. 

Y    303,  38  N.  E.  290,  25  L.  R. 

A.  667,  42  Am.  St.  724..  103. 
Nelson  v.  Richardson  (1903).  108 

111.  App.  121.. 38. 
Nelson     v.     Vermont,     etc.,     R. 

(1854),  26  Vt.  717,  62  Am.  Dec. 

614.. 126. 
Nelson   v.    Young    (1904),   81    N. 

Y.    Supp.    69,    affd    180   N.    Y. 

523,    n    N.    E.    1146..  100.   206, 

230. 
Neuman    v.    Greenleaf,    etc.,    Co. 

(1898),  73  Mo.  App.  326..  175. 
Neumeister  &  Eggers   (1899),  29 

App.   Div.  385,  51  N.  Y.  Supp. 

481.. 105. 
Nevins  v.   Peoria    (1866),  41    111. 

502.   89   Am.   Dec.   392.. 20,  22, 

53,  70,  168. 
Newcomb    v.    Boston,    etc.,    De- 
partment    (1890),    151     Mass. 

315,  24   N.   E.   39,  6  L.   R.   A. 

778.. 149. 


Newman  v.  New  York  (1908),  57 

Misc.  636,  108  N.  Y.  Supp.  676. . 

141. 
Newton  v.   Ellis    (1885),  5  El.  & 

Bl.  115.. 15,  70. 
New  Albany,  etc..  Mill  v.  Cooper 

(1892),  131   Ind.  363,  30  N.   E. 

394,  14  Am.  Neg.  Cas.  456.. 21, 

22. 
New  Albany,   etc..   R.   v.    Maiden 

(1859),  12  Ind.  10.. 123. 
New   Orleans  R.,   see   also.  Rail- 
road Co. 
New   Orleans,   etc.,   R.   v.   Nor- 
wood  (1885),  62  Miss.  565,  52 

Am.  R.  191.. 21. 
New    Orleans,    etc..    R.    v.    Reese 

(1884),  61  Miss.  581,  18  A.  &  E. 

R.  Cas.  110.. 38,  57. 
New    York    v.    Bailey    (1845),    2 

Denio,  433.. 47. 
New    York   v.    Brady    (1893),    70 

Hun,  250,  24  N.  Y.  Supp.  296.. 

229. 
New  York,  etc.,  R.  v.  Cromwell 

(1900),  98  Va.  227,  35  S.  E.  444, 

49   L.    R.    A.   462,   81    Am.    St. 

722.. 136. 
New  York,  etc.,  R.  v.  New  Jer- 
sey, ETC..  R.    (1897),  60  N.   J. 

L.  338,  61   Id.  287,  38  Atl.  828, 

41    Id.   1116,  43   L.   R.   A.  849, 

854.. 38. 
New  York,  etc.,  R.  v.  Winans,  see 

York,  etc..  R.  v.  Winans. 
Nicholson  v.  Mounsey  ( ).  15 

East,  384..  15. 
Nienieyer  v.  Weyerhauser  (1895), 

•95   Iowa,  497,  64  N.   W.  416.. 

208. 
Niobe,    The    (1888),    L.    R.,    13 

Prob.  Div.  155.. 38. 
Nisbett  V.  Dixon    (1852),   14  Sc. 

Sess.  Cas.  (2d  ser.),  973..  16. 
Noble    V.     Hahnemann     Hospital 
(1906).    112    N.    Y.    App.    Div. 

663,  98  N.  Y.  Supp.  605..  149. 
Noggle  V.  Carlisle,  etc.,  R.  (1906), 

215   Penn.  357,  64  Atl.   547.  44 

A.  &  E.  R.  C— N.  S.  627.. 76. 


xlii 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Norfolk,     etc.,     R.    v.     Stevens 

(1899),   97   Va.   631,   34    S.    E. 

925.  46  L.  R.   A.  367.. 55,   180, 

187,  193. 
Norman  v.   Dowd    (1903),  83  N. 

Y.  Supp.  693.. 206. 
Norman    v.    Middlesex,    etc.,    Co. 

(1905).  71  N.  J.  L.  652,  60  Atl. 

936.. 196. 
NoRRis   V.   Androscoggin   R.,    see 

Morris. 
North     Chicago     St.    R.     Co.     v. 

Dudgeon  (1900),  184  111.  477,  56 

N.  E.  796..  110.  189,  194. 
Northern,     etc..     R.     v.     Herbert 

(1886),  116  U.  S.  647.. 180. 
Northern,    etc.,    R.    v.     Peterson 

(1896),  162  U.  S.  346.. 27. 
Northern    Trust    Co.    v.    Palmer 

(1898).  70  111.  App.  93,  171  111. 

383,  49  N.  E.  553,  3  Am.  Neg. 

R.  531 . . 104. 
Northrup  v.  Hay  ward    (1906),  99 

Minn.  299,  109  N.   W.  241.. 20. 
Norton    v.    Wiswall     (1858),    26 

Barb.  (N.  Y.),  618.. 38. 
Norwalk,    etc.,    Co.    v.     Norwalk 

(1893),   63   Conn.   495,   28   Atl. 

321.. 20.  27,  70,  72.  n,  164,  166, 

168. 
Norwich,  etc.,  Co.  v.   New  York, 

etc.,  Co.    (1884),  22  Fed.  672.. 

200. 
Nugent     v.     Boston,     etc..     R, 

(1888),  80  Me.  62,  12  Atl.  797, 

6  Am.  St.  151..  126. 
Nyback   v.    Champagne,    etc.,    Co. 

(1901),   48   C.    C.    A.   632,    109 

Fed.  732.. 35. 


O'Brien  v.  Board,  etc.,   (1880),  6 

Vict.  L.  Rep.  204.. 97. 
O'Brien  v.  Cunard  S.  S.   (1891), 

154  Mass.  272,  28  N.  E.  266,  13 

L.  R.  A.  329.. 38. 


O'Connor  v.  Schnepel    (1895),  33 

N.  Y.  Supp.  562..  106. 
O'Hale  V.  Sacramento  (1874),  48 

Cal.  212..  161. 
O'Hara     v.     Laclede,     etc.,     Co. 

(1908),   131  Mo.  App.  428,  110 

S.  W.  642..  148. 
Ohio,  etc.,  R.  v.  Dunbar  (1850), 

20  111.  623,  71   Am.  Dec.  201.. 

124,  126. 
Old    Colony    R.    Co.    v.    Slavins 

( ),  148  Mass.  363,  19  N.  E. 

372,  12  Am.  St.  R.  558.. 229. 
Oldfield  V.  Furness  (1893,  C.  A.), 

58   J.    P.    102,   9   Times    L.   R. 

513.. 21. 
Omaha    v.    Jensen     (1892),    35 

Nebr.   68,   37   Am.    St.   432,   52 

N.  W.  883.. 79,  141,  142,  145. 
Omaha,    etc.,    Co.    v.    Hargadine 

(1904),  5  Nebr.  (unoff.),  418,  98 

N.    W.    1071,   36  A.   &   E.   Ry. 

Cas.— N.    S.   827,   16  Am.    Neg. 

R.  610,  n.,  s.  c,  suh  nom.,  Har- 
gadine    V.     Omaha,     etc.,     Co. 

(1906),  76  Nebr.  729,  107  N.  W. 

864..20,  85,  203. 
Ominger   v.    New    York,    etc.,    R. 

(1875),  4  Hun    (N.   Y.).  159.. 

205. 
O'Neill  V.   Blase    (1902),  94  Mo. 

App.  648,  68  S.  W.  764.. 34. 
Oregon  R.,  etc.,  Co.  v.  Oregonian 

Rv.  Co.    (1888),  130  U.  S.  1.. 

126. 
O'Rourke  v.   Feist    (1899),  59  N. 

Y.  Supp.  157,  42  App.  Div.  136. . 

106,  107,  109. 
O'Rourke     v.     Hart      (1880),     7 

Bosw.  (N.  Y.),  511,  9  Id.  301.. 

66. 
Ortlip     V.     Philadelphia,     etc.,    R. 

(1901).  198  Pa.  St.  586,  48  Atl. 

497..  183,  194. 
Osljorn  V.  Union,  etc.,  Co.   (1869), 

53  Barb.  (N.  Y.),  629.. 67,  160. 
Otis,  etc.,  Co.  V.  Wingle    (1907), 

82  C.  C.  A.  62,  152  Fed.  914.. 7. 


TABLE   OF    CASES. 


xliii 


[References  are  to  sections.] 


Outrine,     etc.,     Co.     v.     Gregory 

(1903),  28  Vict.  L.  R.  586.  .34. 
Overhouser  v.  American,  etc..  Co. 

(1902),    118    Iowa,   417,   92    N. 

W.  74.. 29. 
Overseer,   etc..   v.    Pelton    (1901), 

129  Mich.  31,  87  N.  W.  1029.  .78. 
Overseer,     etc.,     see     also,     Road 

District. 
Overton  v.  Freeman  (1852),  11  C. 

B.  867,  9  Am.  Neg.  R.  122,  n . . 

51,  57,  230. 


Pack  V.   Mayor,  etc.,   Co.    (1853), 

8  N.  Y.  222,  Huff.   Cas.  Agcy. 

(2d  ed.),  590.  n..20,  50,  51,  52, 

53,  67.  73. 
Painter  v.  Mavor,  etc.   (1863),  46 

Pa.  213.. 46,  51,  52,  53.  141.  183. 
Palmer    v.    Lincoln     (1876),    5 

Nebr.  137,  25  Am.  R.  470.  .70. 
Park  V.  Adams  Co.  (1891).  3  Ind. 

App.  530.  30  N.  E.  147.  .92,  147. 
Parker     v.     Waycross,     etc.,     R. 

(1888),    81    Ga.    387.    8    S.    E. 

871.. 
Parkes  v.  Seasongood  (1907),  152 

Fed.  583.. 38. 
Parkhurst    v.    Swift     (1903).    31 

Ind.  App.  521,  68  N.  E.  620,  16 

Am.  Neg.  R.  613,  n..38. 
Parks  v.  Northwestern  Univer- 
sity (1905),  218  111.  381,  75  N. 

E.   991.    Huff.    Cas.    Agcy.    (2d 

ed),  674,  4  Am.   &  Eng.  Ann. 

C.  103..  149,  165. 
Parr    v.    Sparteneurgh,   etc.,    R. 

(1895).  43  S.  C.   197,  20  S.  E. 

1009.49  Am.  St.  826..  126. 
Parrott  v.  Chicago,  etc..  R.  (1905), 

127  Iowa,  419,  103  N.  W.  352.. 

18,  24. 
Parte  nheimer  v.  Van  Order 

(1855),  20  Barb.  479.. 230. 
Pasquini  v.  Lowery  (1892).  18  N. 

Y.  Supp.  284.  63  Hun,  632.  .218. 

223.  ■ 


Patcrson,   etc.,   R.   v.    Rector,   see 

Rector  v.  P. 
Patterson    v.    Austin     (1895),    15 

Tex.   Civ.   App.   201,   29  S.   W. 

1139.. 141. 
Pawlet  v.  Rutland,  etc..  R.  (1855), 

28  Vt.  297.. 51,  116,  120. 
Payne  v.  Rogers  ( ),  2  H.  Bl. 

350. .49. 
Peachey   v.    Rowland    (1853),    13 

C.  B.  182.. 34,  35. 
Pearl  v.  West  End  Ry.    (1900), 

176  Mass.  177,  57  N.  E.  339.  49 

L.  R.  A.  826.  79  Am.   St.  309, 

Burd.  Cas.  Torts,  407.. 38. 
Pearson   v.  Cox    (1877),  2  C.   P. 

Div.  369..  15,  72,  93. 
Pearson  v.  Zable    (1879),  78  Ky. 

170..  70. 
Peerless   Manufacturing  Co.  v. 

Bagley   (1901),   126  Mich.  225, 

85  N.  W.  568,  53  L.  R.  A.  285, 

86  .\m.  St.  537..  106,  107,  109. 
Pender  v.  Raggo   (1896),  178  Pa. 

St.  337,  35  Atl.  11 15.. 207. 
Pendlehur\-     v.     Greenhalgh,     see 

Pendleton. 
Pendleton  v.  Greenhaugh   (1875), 

1  Q.  B.  36..  15,  46. 
Pennsylvania  Co.  v.  Eilett  (1890). 

132  111.  654,  24  N.  E.  559..  126. 
Pennsylvania  Co.  v.  Gallagher 

(1884),  40  Oh.  St.  637,  48  Am. 

R.  689.. 27. 
Pennsylvania  Co.  v.  Rov   (1880), 

102  U.  S.  451..  133.  135. 
Pennsylvania      Co.     v.      Sloan 

(1888),    125    111.    72,    17   N.    E. 

37,  8  Am.  St.  337..  126. 
Pennsylvania,  etc..  Co.  v.  Gra- 
ham  (1869),  63  Pa.  290,  3  Am. 

R.  549.. 90. 
Pennsvlvaiiia   R.    Co.    v.   La   Rue 

(1897),  81  Fed.  148,  27  C.  C.  A. 

363.. 110. 
Pennv  v.  Council   (1898).  2  Q.  B. 

212.  7  Am.  Neg.  R.  158.  n..65, 

70,  72,  139. 
Peoria,  etc.,  R.  v.  Lane  (1876).  83 

111.  448..  126. 


xliv 


TABLE   OF    CASES. 


[Referencea  are  to  sections.] 


Pepke  V.   Grace  Hospital    (1902), 

130  Mich.  493,  90  N.  W.  278.. 

149. 
Perkins   v.    New  York,   etc.,  R. 

(1862),  24  N.  Y.  196,  82  Am.  D. 

282.. 229. 
Perry  v.  House  of  Refuge  (1884), 

63  Md.  20..  149. 
Perrv    v.    Lord    (1885),    17    Mo. 

App.  212.. 35.  67. 
Perry  v.   Payne   (1907),  217  Pa. 

252.  66  Atl.  553,  11  L.  R.  A.— 

N.  S.  1173.  10  Am.  &  Eng.  Ann. 

Cas.  589.  .210,  229. 
Pettengill   v.    Yonkers    (1889), 

116  N.  Y.  558,  15  Am.  St.  442, 

22  N.  E.  1095..  139,  145. 
Peyton  v.  Richards  (1856),  11  La. 

Ann.  62..  16,  23.  219,  230. 
Pfau  V.  Williamson  (1873),  63  111. 

16.-93,229. 
Philadelphia,    etc.,    R.    v.    An- 
derson   (1880),  94  Pa.   St.  351, 

39  Am,  R.  787..  131. 
Philadelphia,     etc.,     R.    v.    Hahn 

(1888,  Pa.),  22  W.  N.  C.  32,  12 

Atl.   479,   32  A.   &   E.   R.    Cas. 

24..  117. 
Philadelphia,   etc.,   R.   v.    Mitchell 

(1908,  Md.),  69  Atl.  422,  17  L. 

R.   A.— N.   S.  974,  52  A.  &  E. 

Ry.  Cas.— N.  S.  783.. 79. 
Philadelphia,  etc.,  R.  v.   Philadel- 
phia, etc.,  Co.   (1859),  23  How. 

(U.  S.),  209..  176. 
Phillips  V.  Byrne   (1877),  3  Vict. 

L.  R.  179.. 68. 
Phillips  V.  Veazie  (1855),  40  Me. 

98.. 141. 
Pickard  v.    Smith    (1861),    10   C. 

B.— N.   S.  470,  7  Am.  Neg.  R. 

158,  n.,  8  Am.  Neg.  R.  264,  n.. 

45,  65,  72,  99. 
Pickens   v.    Diecker    (1871),   21 

Oh.  St.  212,  8  Am.  R.  55..  16. 
Pielte  V.  Brewing  Co.    (1892),  91 

Mich.    605,    52   N.    W.    152,    13 

Am.  Neg.  Cas.  53,  n..l02. 
Pierrepont  v.  Loveless  (1878),  72 

N.  Y.  211.. 34. 


Pinkerton     v.     Penn.,     etc.,     Co. 

(1899),   193  Penn.  229,  44  Atl. 

284.. 126. 
Pioneer,     etc.,     Co.     v.     Clifford 

(1906),  125  111.  App.  352.. 7. 
Pioneer,     etc.,     Co.     v.     Hansen 

(1898),   176  111.   100,  52  N.  E. 

17,  3  Am.   Neg.  R.   16.. 20,  21, 

22,  57. 
Pioneer,     etc.,     Co.     v.      Howell 

(1901).   189  111.   123,   59  N.   E. 
535.. 101. 
Pitcher    v.     Lennon     (1886),     16 

Misc.    (N.    Y.),   609,   38   N.    Y. 

Supp.   1007.. 38,  68. 
Pitts  V.  Kings  Bridge,  etc..  Board 

(1871),  25  L.  T.— N.  S.  195.. 70. 
Pittsburg,    etc.,    R.    v.    Campbell 

(1877),  86  111.  443..  126. 
Pittsburg,   etc.,   R.   v.    Sullivan 

(1895),   141   Ind.  83,  40  N.   E. 

138,  50  Am.  St.  313,  27  L.  R.  A. 

40.. 165. 

PiTTSFIELD,  etc.,  Co.  V.   PiTTSFIELD, 

ETC.,  Co.   (1902),  71  N.  H.  522. 

53  Atl.  807,  60  L.  R.  A.  116.. 65, 

107,  224,  227. 
Pointer,  see  Painter. 
Pope    V.    King    (1908,    Md.),    69 

Atl.    417,    16   L.    R.    A.— N.    S. 

489.. 174. 
Potter     V.     Seymour     (1859),     4 

Bosw.  (N.  Y.),  140.. 22,  45. 
Pound    V.    Port    Huron,    etc.,    R. 

(1884),  54  Mich.  13,  19  N.  W. 

570.. 123. 
Powell     v.     Construction     Co. 

(1890),  88  Tenn.  692,  13  S.  W. 

69,   17   Am.    St.  925.. 7,   16,   17, 

20,  22,  Zl,  57. 
Powers    v.    Harlow     (1884),    53 

Mich.  507,  51  Am.  R.  154.. 206. 
Powers     V.     Massachusetts,     etc., 

Hospital  (1899),  101  Fed.  896.. 

149. 
Prairie,  etc.,  Co.  v.  Doig   (1873), 

70  111.  52..  102. 
Pregenzer  v.  Burleigh   (1893),  26 

N.  Y.  Supp.  35.. 38. 


TABLE   OF   CASES. 


xlv 


[References  are  to  sections.] 


Proctor  V.  San  Antonio  St.  R. 
(1901),  26  Tex.  Civ.  App.  148, 
62  S.  W.  939.. 204. 

PULLM.VN,      ETC.,      Co.      V.      LaACK 

(1892),    143   111.   242,   32   N.   E. 
285,  18  L.  R.  A.  21 5.. 197. 
Pye  V.   Faxon    (1892),   156  Mass. 
471,   31    N.   E.   640.  .66,   70,  85, 
92,  115. 


Quarman  v.  Burnett  (1840),  6  M. 

&  W.  499.  4  Am.  Neg.  R.  437, 

n..l4,  38,  50,  51. 
Queen,  see  Regina. 
Quested  v.  Newburjport,  etc.,  R. 

(1879),  127  Mass.  204..  126. 
Quinn     v.     Complete,     etc.,     Co. 

(1891),  46  Fed.  506.. 31. 
Quinn   v.    Railroad   Co.    (1895), 

94  Tenn.  713,  30  S.  W.  1036,  45 

Am.  St.  767,  28  L.  R.  A.  552.. 

165. 


Railroad  Co.  v.  Hanning  (1872), 

15   Wall.    (U.   S.).  649,   7  Am. 

Neg.  Cas.  309.  .20,  27,  65. 
Railroad  Co.  v.  Morey  (1890),  47 

Oh.  St.  207,  24  N.  E.  269,  7  L. 

R.  A.   701,  43  Am.   &   Eng.  R. 

Cas.  97.. 67,  70,  79,  93. 
Railroad  Co.   v.  Rav    (1898),   101 

Tenn.  1,  46  S.  W.  554.. 38. 
Railroad  Co.  v.  Walrath  (1882), 

38  Oh.  St.  461,  43  Am.  R.  433.. 

133. 
Rait    V.    New   England,   etc.,   Co. 

(1896),  66  Minn.  76,  68  N.  W. 

729..  13,  19,29. 
Randleson    v.    Murray    (1838),    8 

A.   &   E.    109,   4   Am.    Neg.   R. 

642,  n..47,  207. 
Randolph  v.   Feist    (1898),  52  N. 

Y.  Supp.  109..  107. 


Rankin    v.    Dixon    (1847),   9    Sc. 

Sess.   Cas.    (2d   ser.),   1048..  16. 
Rankin  v.  Merchants,  etc.,  Co. 

(1884),  n  Ga.  229.  54  Am.  R. 

874,  14  Am.  Neg.  Cas.  75.. 38. 
Rapson  v.  Cubitt  (1842),  9  Mees. 

&  W.  710.. 50,  57. 
Rathbone,    ex    parte     (1892),     13 

New  South  W.  L.  R.  56.. 33. 
Ray     V.     City     of     Poplar     BlufiF 

(1897),    70   Mo.    App.   252.. 70, 

141. 
Read    v.    East    Providence,    etc. 

(1898),   20   R.    I.    574,   40   Atl. 

760,  4  Am.  Neg.  Rep.  589.. 58, 

174,  228. 
Reagan  v.  Casey  (1894),  160  Mass. 

374,  36  N.  E.  58.. 93. 
Rector,    etc.,    v.    Paterson,    etc., 

R.    (1901),  66  N.  J.  L.  218,  49 

Atl.    1030,    55    L.    R.    A.    81; 

(1902),  68  N.  J.  L.  399,  53  Atl. 

449,  1079,  16  Am.  Neg.  R.  614, 

n..219. 
Reed  v.  Alleghany  (1875),  79  Pa. 

St.  300.. 20,  52,  53. 
Reedie  v.  London,  etc.,  R.  (1849), 

4   Exch.   244,  6   Eng.   R.   &   C. 

Cas.  184,  4  Am.  Neg.  R.  438,  n., 

9  Id.  122.  n..l5.  21.  45,  46,  50, 

51,  52.  100.  116. 
Reeves   v.    State    Bank    ( ),   8 

Oh.  St.  476..  15. 
Regina  v.  Bailey    (1871),  12  Cox 

C  C  56    38 
Regina  v.   Clifford    (1878),   3   N. 

Zeal.  J.— N.  S.  51.. 215. 
Regina  v.  Gibbs  (1855),  6  Cox  C. 

C.  455.. 29. 
Regina    v.    Goodbody     (1838),    8 

Car.  &  P.  665.. 36. 
Regina   v.    Hall    (1875),    13    Cox 

C.  C.  49.. 215. 
Regina  v.   Hey    (1847),  2  Car.   & 

K.  985.. 36. 
Regina  v.   Hughes   (1846),  2  Cox 

C.  C.  104.. 35-. 
Regina   v.   Lvnch    (1854),   6   Cox 

C.  C.  445.^36. 


xlvi 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Regina  v.   Mav    (1861),   Leigh  & 

C.  C.  C.  13.. 4,  38. 
Regina  v.  Negus  (1873),  L.  R.,  2 

N.  C.  37.. 4. 
Regina  v.  Siffidge   (1853),  Legge, 

New  So.  W.  793.. 36. 
Regina  v.  Stephens  (1865).  L.  R., 

1  Q.  B.  702.. 124. 
Regina  v.  Thomas  (1853),  6  Cox 

C.  C.  403.. 36. 
Regina  v.  Tite   (1861),  8  Cox  C. 

C.  458.. 38. 
Regina  v.   Walker    (1858),  27  L. 

J.  Mag.  C— N.  S.  208.. 4. 
Reid    V.    Darlington,    etc..    Board 

(1877,  Q.  B.  D.),  41  J.  P.  581.. 

147. 
Reier    v.    Detroit,    etc..    Works 

(1896),  109  Mich.  244,  67  N.  W. 

120,  4  Am.  &  Eng.   Corp.   Cas. 

— N.  S.  459,  16  Am.  Neg.  Cas. 

30,  n..208. 
Reilly  v.  Chicago,  etc.,  R.  (1904), 

122  Iowa,   525,   98   N.   W.   464, 

33  A.  &  E.  Ry.  C— N.   S.  418, 

16  Am.  Neg.  R.  611,  n..55. 
Reuben  v.  Swigert   (1898),  7  Oh. 

Dec.  638,  15  Oh.  C.  C.  565.. 86, 

90.  92. 
Rex  V.   Carr    (1811),   Russ.  &  R. 

C.  C.   198.. 38. 
Rex  V.  Hughes   (1832),  1  Moody 

C.  C.  370.. 36. 
Rex  V.  McNanee  (1832),  1  Moody 

C.  C.  368.. 36. 
Rex  V.   Medley    (1834),  6  Car.  & 

P.  292.. 124. 
Reynolds    v.    Braithwaite    (1889), 

131  Pa.  St.  416,  18  Atl.  110.. 46, 

168. 
Reynolds  v.  Van  Beuren  (1898), 

155   N.   Y.    120,   49  N.   E.   763, 

42  L.  R.  A.  129.. 216. 
Rheola,  The  (1884),  19  Fed.  926.. 

208. 
Rice    V.    Smith    (1902),    171    Mo. 

331,  71   S.  W.  127.. 206. 
Rich    v.    Miimeapolis    (1887),    37 

Minn.  423,  35  N.  W.  2,  5  Am. 

St.  861..  143. 


RiCH.\RDS0N  V.   Carbon,  etc.,  Co. 

(1893).  6  Wash.  52,  20  L.  R.  A. 

338,    32    Pac.    1012,    Huff.    Cas. 

Agcy.   (2d  ed.),  685,  n. ;   (1895), 

10  Wash.  648,  39  Pac.  95..  149. 
Richev    v.    DuPre    (1883),   20    S. 

C.  6.. 34. 
Richmond  v.  Lincoln    (1906).  167 

Ind.  468,  29  N.  E.  445.. 38. 
Richmond  v.  Long,  see  City  of  R. 
Richmond  v.    Sitterding    (1903), 

101   Va.   354,  43   S.   E.   562,  99 

Am.   St.  879,  65  L.  R.  A.  445, 

16  Am.   Neg.   R.  609,  n..4,   13, 

14,  16,  18,  19,  20,  21,  25,  26,  27, 

31,  32,  33,  34,  35,  38,  45,  69,  72, 

93,  100,  140. 
Richmond,     etc.,     R.     v.     Elliott 

(1893),  149  U.  S.  266..  188. 
Richmond,     etc.,     R.     v.     Moore 

(1897),   94   Va.   493,   27   S.    E. 

70,  37  L.  R.  A.  258.. 77. 
Ricketts    v.    Birmingham    St.    R. 

(1888),  85  Ala.  600,  5  So.  353.. 

126. 
Ricketts  v.  Chesapeake,  etc.,  R. 

(1890),  33  W.  Va.  433,  10  S.  E. 

901,  7  L.  R.  A.  354,  25  Am.  St. 

901.. 89. 
Ridgwav  v.  Downing  Co.   (1900), 

109   C^a.   591,   34  S.   E.    1028,   7 

Am.  Neg.  R.  218..  19,  56,  65. 
Riedel  v.  Moran,  etc.,  Co.   (1894), 

103  Mich.  262,  61  N.  W.  509. . 

92. 
Riley    v.    State    Line,    etc.,    Co. 

(1877),  29  La.  Ann.  791,  29  Am. 

R.  349..  16,  210. 
Riley  v.  Warden  (1848),  2  Exch. 

59..  33. 
Rimley     v.      Philadelphia      (1904, 

Penn.),   57   Atl.   347,    16  Amer. 

Neg.  R.  608,  n..l41. 
Ringue  v.  Oregon,  etc.,  Co.  (1904), 

44  Ore.  407,  75  Pac.  703.. 5. 
Road     District,     etc.,     v.     Pelton 

(1901),  129  Mich.  31,  87  N.  W. 

1029.. 78. 
Robbins    V.    Atkins     (1897),    168 

Mass.  45,  46  N.  E.  425,  1  Am. 

Neg.  R.  617..  109. 


TABLE   OF    CASES. 


xlvii 


[References  are  to  sections.] 


Robbins     v.     Chicago     (1866),     4 

Wall.    (U.   S.),  567.. 66,  67.  7U, 

92,  93. 
RoBiuEAux  V.  Hebert   (1907),  118 

La.   1089,  43  So.  887,   12  L.  R. 

A.— N.  S.  632..  16,  183. 
Robinson    v.    Pittsburg,    etc..    Co. 

(1904),   63    C.    C.   A.   258,    129 

Fed.  324..  196. 
Robinson    v.     Webb     (1875),     11 

Bush    (Ky.),   464..  15.   51,    100, 

168,  170. 
Rock  v.  Americ.\n  Construction 

Co.    (1908).  120  La.  831,  45  S. 

741,   14  L.   R.   a.— N.   S.  653.. 

148. 
Rockford.  etc..  R.  v.  Wells  (1872), 

66  111.  321..  123,  124. 
RoDOY     V.     Missouri,     etc.,     R. 

(1891),  104  Mo.  234,  15  S.  W. 

1112.  12  L.  R.  A.  746,  24  Amer. 

St.  R.  333.. 224. 
Roe  V.  Winston  (1902),  86  Minn. 

V,  90  N.  W.  122.. 7.  19. 
Roemer  v.   Striker   (1893).  21    N. 

Y.  Supp.   1090;    (1894),   142  N. 

Y.  136.  36  N.  E.  308.. 73. 
Rogers    v.    Florence    R.     (1889), 

31   S.   C.  378.  9  S.   E.   1059,  39 

Am.  &  Eng.  R.  Cas.  348.  .20,  24. 
Rome,     etc.,     R.     v.     Ch.\steen 

(1889),  88  Ala.   591,  7   So.  .94, 

40  Am.  &   Eng.   R.  Cas.   559.. 

20.  32.  55,  118.  122. 
Rook  V.  New  Jersey-,  etc.,  Works 

(1894),  76  Hun  (N.  Y.),  54,  27 

N.  Y.  Supp.  623.. 223. 
Roonev     v.      Brogan.     etc..      Co. 

(1905),  95  N.  Y.  Supp.  1..206. 
Roswell  V.  Prior   (1702),  12  Mod. 

635.. 48. 
Rotter  V.   Goerlitz    (1890).   12  N. 

Y.  Supp.  210..  106. 
Rourkc  V.  White   Moss.  etc..   Co. 

(1877),  2  C.  P.  D.  205.  1  C.  P. 

556.. 7,  34. 

RUMMELL     V.      DlLWORTH       (1885), 

111  Pa.  343,  2  Atl.  355;  (1890), 
131  Pa.  St.  609.  19  Atl.  345.  17 
Am.  St.  827.. 34. 


Russell  v.  Columbia    (1881),  74 

Mo.  480,   41    Am.   R.   325..  139, 

145. 
Russell    V.    Buckhout    (1895),    87 

Hun,  46,  34  N.  Y.  Supp.  271 . . 

38. 
Rmh  V.  Surrey  Dock  Co.  (1891), 

8  Times  L.  R.  116.. 29. 
Ryan  v.  Curran   (1878),  64  Ind. 

345,  31  Am.  R.  123.. 92. 
Ryan     v.     New     York.     etc..     R. 

(1902),  115   Fed.   197.. 205. 
Rvder     v.     Thomas     (1878).     13 

Hun    (N.   Y.),  296.. 50,  51,  65, 

93,  100. 


S 


Sabin  v.  Vermont,  etc.,  R.   (1853), 

25  Vt.  363.. 73. 
Sacher    v.    Waddell    (1903).    98 

Md.   43.   56   Atl.   399,   103   Am. 

St.  374.. 7.  29. 
Sack  V.  St.  Louis,  etc.,  Co.  (1905), 

112    Mo.    App.    476,    87    S.    W. 

79.. 200.  210. 
Sackewitz  v.   American,   etc.,   Co. 
■     (1899).  70  Mo.   App.   144..  110, 

180. 
Sadler   v.    Henlock    (1855),   4   E. 

&  B.  570..  18.  28.  34.  35.  45.  12. 
St.     Clair,     etc.,     Co.     v.     Smith 

(1890),  43  111.  App.  105.. 34. 
St.    Johns,     etc..     R.     v.     Shallev 

(1894).  ZZ  Fla.  397,  14  So.  890.'. 

19,  21. 
St.     Louis,     etc.,     R.     v.     Arnold 

(1903),  32  Te.x.  Civ.  App.  272, 

74  S.  W.  81 9.. 229. 
St.    Louis,   etc.,    R.    v.    Davenport 

( ),  —  Ark.  ,  —  S.  W. 

,  48  A.  &  E.  Rv.  C— N.  S. 


516.. 32. 
St.     Louis,    etc.,    R.    v.    Dawson 
(1902).  30  Tex.  Civ.  App.  261. 
70  S.  W.  450..  198. 


X 


Iviii 


TABLE   OF    CASES. 


[References  are  to  sections.] 


St.    Louis,    etc.,    R.    v.    Drennan 

(1887),   26    111.    App.    263—124. 
St.  Louis,  etc..  R.  v.  Knott  (1891), 

54  Ark.  424,  16  S.   W.  9..  124. 
St.    Louis,    etc.,    R.    v.    Madden 

(1908),    V    Kans.    80,    93    Pac. 

586,    17   L.    R.    a.— N.    S.    788, 

50  A.  &  E.  R.   C— N.   S.  48.. 

66,  74. 
St.    Louis,    etc.,    R.    v.    Renfroe 

(1907),  82  Ark.  143,  100  S.  W. 

889,   10  L.   R.   A.— N.   S.  317.. 

136. 
St.  Louis,  etc.,  R.  v.  Ritz  (1883), 

30  Kans.  31,  2  Pac.  27..  120. 
St.  Louis,  etc.,  R.  v.  Trigg  (1897), 

63  Ark.  536,  40  S.  W.  579.  .126. 
St.  Louis,  etc.,  R.  V.  Willis   (1888), 

38   Kans.   330,   16  Pac.   728,   33 

A.  &  E.   R.   Cas.  397.. 55,   120, 

174. 
St.    Louis,    etc.,    R.    v.    Yonley 

(1900),  53  Ark.  503,  13  S.  W. 

333,   14   S.   W.   800,   45   Am.   & 

Eng.   R.   Cas.   578,  9  L.   R.   A. 

604.. 34,  36,  55,  74. 
St.     P.aul    v.     Seitz     (1859),    3 

Minn.  297,  11  Am.  D.  753.. 20, 

70,  139. 
St.  Peter  v.  Denison   (1874),  58 

N.  Y.  416,  17  Am.  R.  258.. 216. 
S.\liotte  v.  King,  etc.,  Co.  (1903), 

122  Fed.  378,  58  C.  C.  A.  466,  65 

L.  R.   A.  620,  16  Am.   Neg.  R. 

615,   n..l8,   24,   45,   46,   47,   51, 

52,  65,  66,  70,   72,   73,  97,   100, 

228. 
Salisbury    v.    Erie    Railway 

(1901),  66  N.  J.  L.  233,  50  Atl. 

117,  88  Am.  St.  480,  55  L.  R.  A. 

578.. 72. 
Salvas    V.     New     City    Gas     Co. 

(1879,  Quebec),  2  L.  N.  S.  C. 

97.. 67. 
Samuel  v.  Novak  (1904),  99  Md. 

558,  58  Atl.  19.. 95. 
Samuelson    v.    Cleveland,    etc., 

Co.  (1882),  49  Mich.  164,  13  N. 

W.   499,    43   Am.    R.    456..  160, 

206. 


Samvn    v.    McCloskey    (1853),    2 

Oh.  St.  536.  .20,  26. 
San   Antonio,   etc.,   Co.   v.    Dixon 

(1897),  17  Tex.  Civ.  App.  320, 

42  S.  W.  1009.. 208. 
Sanford  v.   Pawtucket,  etc.,  R. 

(1896),  19  R.  L  537,  35  Atl.  67, 

4  Am.  &  Eng.  Ry.  Cas.— N.  S. 

318,  33  L.  R.  A.  564.  .28,  57,  93, 

116. 
Sanford    v.    Standard    Oil    Co. 

(1890),  118  N.  Y.  576,  16  Am. 

St.  787,  24  N.  E.  313..7. 
Saunders   v.   Coleridge    (1896,   D. 

C),  72  Fed.  676.. 27. 
Saunders   v.    Toronto    (1889),   26 

Ont.  App.  R.  265..  19,  20. 
Savannah  v.  Waldner   (1873),  49 

Ga.  316..  141. 
Savannah,     etc.,     R.     v.     Phillips 

(1892),   90   Ga.   829,    17   S.    E. 

82.. 58,  92,  176,  193,  205. 
ScAMMON    V.    City,    etc.    (1861), 

25   111.  424,  79  Am.   D.   334,  14 

Am.    Neg.   Cas.  418,   n..70,   72, 

91,  93. 
Scarborough     v.     Ala.,     etc.,     R. 

(1891),    74    Ala.    497,    10    So. 

316.. 120. 
Scanlon  v.  Watertown  (1897),  14 

App.    Div.    1,   43    N.    Y.    Supp. 

618,  1  Am.  Neg.  R.  487..  140. 
Scharff  v.  Southern  Ills.,  etc.,  Co. 

(1905),  115  Mo.  App.  157,  92  S. 

W.  126.. 38. 
Scheller  v.  Silbermintz  (1906),  50 

Misc.  175,  98  N.  Y.  Supp.  230.. 

90. 
Schip     V.      Pabst     Brewing     Co. 

(1896),  64  Minn.  22,  66  N.  W. 

3..  164,  206,  210. 
Schnurr  v.  Huntington  Co.  (1899), 

22    Ind.    App.    188,    53    N.    E. 

425..  73,  164. 
School  District  v.  Fuess  (1881), 

98  Pa.  600,  42  Am.  R.  627.. 22. 
Schular  v.  Hudson  R.  R.    (1862), 

38  Barb.  653.. 20,  21,  116. 
Schute  v.  Princeton,  see  Shute. 


TABLE   OF    CASES. 


xlix 


[References  are  to  sections.] 


Schutte  V.  United,  etc,  Co.  (1902), 

68  N.  J.  L.  435,  53  Atl.  204,  16 

Am.  Neg.  R.  614,  n..57,  90,  215_. 
Schwartz  v.  Gilmore  (1867),  45 

111.   455,   92  Am.    Dec.  227..  19, 

38,  170. 
Schweikardt  v.  St.  Louis   (1876), 

2  Mo.  App.  571..  139,  200. 
Scott    V.    Springfield     (1899),    81 

Mo.  App.  312.. 21. 
Searle  v.  Laverick   (1874),  L.  R., 

9  Q.  B.  122.. 107. 
Seattle  v.  Buzby  (1880),  2  Wash. 

25,  3  Pac.  180..  139. 
Sebeck    v.    Plattdeutsche,    etc. 

(1900),  64  N.  J.  L.  624,  46  Atl. 

631,   50  L.   R.  A.   199,  81    Am. 

St.  512..  164. 
Sellars  v.  Dempsey  (1898),  49  N. 

Y.  Supp.  765.. 208. 
Serandat  v.  Saisse   (1866),  L.  R., 

1  P.  C.  152.. 20,  35. 
Sesler  v.  Rolfe,  etc.,  Co.    (1902), 

51  W.  Va.  318,  41   S.  E.  216.. 

200. 
Sessengut   v.    Posey    (1879),   67 

Ind.  408,  33  Am.  R.  98.  .95. 
Sewall    V.    St.    Paul     (1874),    20 

Minn.  511.. 230. 
Seymour  V.  Cummins  (1889),  119 

Ind.  148,  21  N.  E.  549,  5  L.  R. 

A.  126..  67. 
Sharman    v.    Sanders    (1853),    13 

C.  B.  166.. 33. 
Sharp    V.    Gray    (1833),    9    Bing. 

457,  2  Moore  &  S.  621..  133. 
Shaw  V.  Crocker   (1871),  42  Cal. 

435.. 21 5. 
Shaw  V.  West,  etc.,  Co.  (1872,  Ct. 

of  Sess.).  9   Scot.   L.   R.  254.. 

205. 
Shea    V.    Reems    (1884),    36    La. 

Ann.  966..  13,  34. 
Shea  V.    River,    etc.,    Bd.    (1880), 

Ir.   L.   R.,  6  C    L.   179.. 67. 
Sheltrawn    v.    Michigan,    etc.,    R. 

(1901),    128    Mich.    669,   87   N. 

W.  893.. 210. 
Shepard     v.      Buffalo,      etc.,      R. 

(1866),  35  N.  Y.  641..  123. 


Shepard   v.   Creamer    (1894).   160 

Mass.  496,  36  N.  E.  475..  149. 
Sherman    v.    Delaware,    etc.,    Co. 

(1899),  71  Vt.  325,45  Atl.  227.. 

196. 
Shute  V.  Princeton  Tp.  (1894),  58 

Minn.  337,  59  N.  W.  1050.. 71, 

74.     See,  also.  Schute. 
Siemsen     v.     Oakland,     etc.,     R. 

(1901).    134    Cal.   494,   66    Pac. 

672.. 133. 
Silvers   v.   Nerdlinger    (1868),   30 

Ind.  53.. 47,  92. 
Silverton  v.   Marriott    (1888),   59 

L.  T.— N.  S.  61..  176. 
Simons    v.    Gregory    (1905),    120 

Ky.  116,  85  S.  W.  751.. 224. 
Simonton    v.    Perry    (1901,    Tex. 

Civ.),   62    S.   W.   1090.. 20. 
Sims     v.      Dominion,      etc.,      Co. 

(1901),   2   Ont.    L.   R.   69..  191. 
Sincer  v.  Bell  (1895),  47  La.  Ann. 

1548,  18  So.  755.. 230. 
Singer    Manufacturing    Co.    v. 

Rahn    (1889),   132   U.    S.    518, 

Huff.  Cas.  Agcy.  9.  .27,  28,  34, 

45. 
Sinquasi,    The    (1879),    L.    R..    5 

Prob.  Div.  241.. 38. 
Skeiton     v.      Fenton,      etc.,      Co. 

(1894).  100  Mich.  87,  58  N.  W. 

609.. 67. 
Skeiton     v.     Larkin     (1894),     82 

Hun.  388,  31  N.  Y.  Supp.  234; 

(1895).  146  N.  Y.  365,  41  N.  E. 

90..  176. 
Slater    v.    Mersereau    (1876),    64 

N.  Y.  138.. 57,  97.  230. 
Slattery     v.      Walter,      etc.,     Co. 

(1901).  179  Mass.  307,  60  N.  E. 

782.. 183. 
Slavton  V.  West  End   St.   R.  Co. 

0899,   Mass.),  6  Am.    Neg.   R. 

289.. 121. 
Sleeman     v.     Barrett     (1864),     2 

Hurl.  &  C.  934.. 215. 
Slingerland    v.    East   Jersey,    etc., 

Co.   (1896).  58  N.  J.  L.  411,  33 

Atl.  843.. 230. 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Slingsley.   The    (1903),    120   Fed. 

748.. 7,  21. 
Sly  V.  Edgely   (1806),  6  Esp.  6.. 

47. 
Smallwood    v.    B.-\ltimore,    etc., 

R.    (1906),  215   Pa.   St.  540,  64 

Atl.  1Z2,  7  Am.  &  Eng.  Anno. 

Cas.  525.. 205. 
Smith     V.     Belshaw     (1891),     89 

Cal.  427,  26  Pac.  834.  .206. 
Smith  V.    Creole    (1853),  2  Wall. 

Jr.  485,  Fed.  Cas.  13033.. 38. 
Smith    V.     Humphreyville     (1907, 

Tex.    Civ.    App.),    104    S.    W. 

495.. 208. 
Smith   v.   Milwaukee,  etc.,   Ex- 
change   (1895),   91   Wise.   360, 

64  N.  W.  1041,  Hufif.  Cas.  Agcv. 

(2d    ed.),    591,    n.,   51    Am.    St 

912,    30   L.    R.    A.    504.. 22,   90, 

92,  93,  168. 
Smith  v.  Renick   (1898),  87  Md. 

610,   41    Atl.    56,    42    L.    R.    A. 

m  ..71. 
Smith    V.    St.    Joseph    (1890),    42 

Mo.  App.  392..  141. 
Smith  V.  Seattle  (1899),  20  Wash. 

613,  56  Pac.  389..  139. 
Smith    v.    Simmons    (1883),    103 

Pa.   St.  32,  49  Am.  R.  11 3.. 34, 

141. 
Smith    V.    Traders    Exch.,    see    S. 

V.  Milwaukee,  etc. 
Snark.  The    (1899),  68  Law  T.— 

N.  S.  25.. 20. 
Solomon  Railroad  v.  Jones  (1833), 

30    Kans.    601,    2    Pac.    657,    15 

A.  &  E.  R.   C.  201.. 205. 
Southern   Ohio  R.   v.   Morey,   see 

Rv.  Co.  V.  Morey. 
Southern  R.  v.  Drake  (1902),  107 

111.  App.   12.. 205. 
Southern    R.    v.    Newton    (1908), 

108  Va.    114,   60   S.    E.   625,   51 

A.    &    E.    R.    C— N.    S.    528.. 

189. 
Southern,     etc.,     Co.     v.     Church 

(1903),  32  Tex.  Civ.  App.  325, 

74   S.   W.   797,   75   Id.   317,    16 

Am.  Neg.  R.  611,  n..203,  208. 


Southern,     etc.,     R.     v.     Wallace 

(1899),   23  Tex.   Civ.   App.    12, 

54  S.   W.  638..  18. 
Southwell    V.    Detroit    (1889),    74 

Mich.  438,  42  N.   W.    118..  141. 
Southwestern    Tel.    Co.    v.    Paris 

(1905),  39  Tex.  Civ.  App.  424, 

87  S.  W.  724..  100. 
Spaight   V.    Tedcastle    (1881),    L. 

R.,  6  App.  C.  21 7.. 38. 
Speed  V.  Atlantic,  etc.,  R.  (1879), 

71  Mo.  303,  2  A.  &  E.  R.  Cas. 

77.. 20.  21,  35. 
Spence    v.     Schultz     (1894),     103 

Cal.  208,  n  Pac.  220.. 65,  69,  75, 

92,  93. 
Springfield  v.  LeClaire  (1869),  49 

111.   476..  139. 
Springfield    Light,    etc.,    Co.    v. 

Calvert  (1907),  231  111.  290,  83 

N.   E.   184,  14  L.  R.  A.— N.   S. 

782.. 220. 
Sproul  v.  Hemingway  (1833),  14 

Pick.    (Mass.),   1,  25   Am.   Dec. 

350.. 38. 
Staldter    v.     Huntington     (1899), 

153   Ind.  354,  55   N.   E.  88.. 20, 

IZ. 
Standard    Oil     Co.    v.    Anderson 

(1907),   152  Fed.   166,  81   C.  C. 

A.  399.. 7. 
State  v.  Coe  (1881),  72  Me.  456.. 

36. 
State  V.  Emerson   (1881).  72  Me. 

455.. 36. 
State    V.    Swavzee    (1889).   52    N. 

J.  L.  129,  18  Atl.  697..  18. 
Steam  Navigation  Co.  v.   British, 

etc..  Navigation  Co.    (1868),  L. 

R.,  3  Exch.  330.. 8. 
Stearns     v.      Atlantic,      etc.,     R. 

(1858),  46  Me.  116..  126. 
Steel     v.     Southeastern     R.     Co. 

(1855),    16    C.    B.   550. .22,    24, 

116. 
Steeples  v.  Panel,  etc.,  Co.  (1903), 

2>2,  Wash.  359,  74  Pac.  475..  193. 
Steinbrook  v.  Covington,  etc.,  Co. 

(1897).  4  Oh.— N.  P.  229,  6  Oh. 

Dec.  328..  104. 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Stephen  v.  Commissioners  (1876), 

3  Scss.  Cas.  535..  19,  20,  25,  184. 
Stepliens     v.     London,     etc.,     R. 

(1886),  L.  R..  18  Q.  B.  D.  121.. 

138. 
Steppe   v.    Alter    (1896),   48   La. 

Ann.   363,    19   So.    147,   55    Am. 

St.  281.. 92. 
Ster    V.    Tuety    (1887),    45    Hun 

(N.  Y.),  49.. 92. 
Sterger    v.    Van     Siclen     ( ), 

7  N.  Y.  Supp.  805..  106. 
Sterling  v.    Schiffmacher    (1892), 

47  111.  App.  141..  141.  145. 
Stevens   v.    Armstrong    (1852),   6 

N.  Y.  435.. 45. 
Stevenson  v.  Wallace    (1876),  27 

Gratt.    (Va.),  77.. 65,  67. 
Stewart  v.  Californi.\,  etc.,  Co. 

(1900),    131    Cal.    125.   63    Pac. 

177.  52  L.  R.  A.  205,  Burd.  Cas. 

Torts,  412.. 31,  67. 
Stewart    v.    Ferguson    (1899).   60 

N.  Y.  Supp.  429..  110. 
Stewart    v.    Putnam    (1879),    127 

Mass.  403.. 98. 
Stone    V.     Cartwright     ( ),    6 

Term.    Rep.    411.. 49. 
Stone  V.  Cheshire  R.,  see  Stone  v. 

R.  Corp. 
Stone  V.  Codman  (1834),  15  Pick. 

(Mass.),  297.. 35. 
Stone   v.    Railroad    Corpor.^tion 

(1849),  19  N.  H.  427.  51   Am. 

D.   192.. 47.  50.  74.  116,  124. 
Stork    v     Philadelphia    (1900), 

195  Pa.   101,  45  Atl.  678,  49  L. 

R.  A.  600:    (1901).  199  Pa.  St. 

462,49  Atl.  236.. 20.  88. 
Stormcock,  The   (1885),  53  L.  T. 

— N.  S.  53,  5  Asp.  Mar.  L.  Cas. 

470.. 38. 
Storrs   v.    City.   etc..    (1858).    17 

N.  Y.  104.  72  Am.  Dec.  437.. 65, 

70,  73,  85,  91,  93,  141,  160. 
Storv  V.  Concord,  etc.,  R.  (1900), 

70  N.  H.  364,  48  Atl.  288..  197. 
Straus  V.  Buchman   (1904),  89  N. 

Y.  Supp.  226.. 21 5. 


Strauss   v.   City,   etc.    (1900),    108 

Ky.  155,  55  S.  W.  1075.. 66,  93, 

100. 
Sturgess  v.   Society    (1881),   130 

Mass.  414,  39  Am.  R.  463.. 65, 

69,  95,  98,  164,  176. 
Sturgis  v.  Boyer  (1860),  24  How. 

(U.  S.),  110.. 38. 
Suburban,     etc.,     R.     v.     Balkwill 

(1900),  94  111.  App.  454..  121. 
Sullivan    v.    Durham    (1898),    35 

App.  Div.  342,  54  N.  Y.   Supp. 

962.. 70.  72. 
Sullivan    v.    Louisville,    etc.,    Co. 

(1872),   9   Bush    (Ky.),   81,    15 

Am.   Neg.  Cas.   147.. 222. 
Sullivan    v.    New    Bedford,    etc., 

Co.  (1906).  190  Mass.  288,  76  N. 

E.  1048.. 38. 
Sulzbacher    v.    Dickie     (1876),    6 

Daly  (N.  Y.),  469,  51  How.  Pr. 

500..  106,  107,  109. 
Susouehanna  Depot  v.  Simmons 

(1886),  112  Pa.  384,  5  Atl.  434, 

56  Am.  R.  317..  141. 
Svenson     v.     Atlantic,     etc.,     Co. 

(1874),  57  N.  Y.  108..  196. 
Swan  v.  Jackson   (1889).  55  Hun 

(N.    Y.),    194,    7    N.    Y.    Supp. 

821..  177,  224. 
Swart   V.   Justh    (1904).   24   App. 

(D.  C),  596.. 228. 
Sweeney      v.      Boston,      etc..      R. 

(1878),   128  Mass.  5,   1  Am.  & 

Eng.  R.  C.  138.. 205. 
Sweeney    v.    Murphv    (1880),    32 

La.  Ann.  628..  16,  38. 
Sweet  v.    Gloversville    (1877),   12 

Hun  (N.  Y.).  302..  145. 
Svmons  v.  Alleghany  Co.    (1907), 

'l05  Md.  254.  65  Atl.  1067.. 65. 


Talbott  V.  Board,  etc..  (1908, 
Ind.),  85  N.  E.  376.. 202. 

Tanco  v.  Booth  (1891),  15  N.  Y. 
Supp.  110..  38. 


Hi 


TABLE   OF   CASES. 


[References  are  to  sections.] 


Tarry  v.  Ashton   (1876).  L.  R.,  1 

Q.   B.   D.   314,   7   Am.    Neg.   R. 

157,  n..65.  92.  93.  124,  176,  183. 
Tatje  V.  Frawley    (1900,  La.),  27 

So.  339. .215. 
Taylor  v.  Dunn   (1891),  80  Tex. 

652,  16  S.  W.  732.. 45. 
Taylor  v.  Greenhalgh    (1876),  24 

Week.  Rep.  311..  139. 
Tavlor  v.  Mexican,  etc.,  R.  (1847), 

2  La.  Ann.  654.. 38. 
Taylor,  etc.,  R.  v.  Warner  (1895), 

88  Tex.  642,  31  S.  W.  66,  32  S. 

W.  868;  (1899),  92  Tex.  535,  50 

S.  W.  120;   (1900,  Tex.),  60  S. 

W.  442.. 32,  92,  118,  121,  173. 
Teller  v.  Bay,  etc.,  Dredging  Co. 

(1907,  Cal),  90  Pac.  942.  12  L. 

R.  A.— N.  S.  267.. 20,  34,  52. 
Tennessee,     etc.,     Co.     v.     Hayes 

(1892),  97  Ala.  201,  12  So.  98.. 

35. 
Texas,  etc.,  R.  v.  Johnson   (1899, 

Tex.  Civ.  App.),  6  Am.  Neg.  R. 

716.. 86. 
Texas,  etc.,  R.  v.  Juneman  (1895), 

71  Fed.  939,  18  C.  C.  A.  249.. 
115,  116. 

Texas,  etc.,  R.  v.  Parsons   (1908, 

Tex.    Civ.    App.),    109    S.    W. 

240.. 16. 
Thomas     v.     Altoona,      etc.,     R. 

(1899),    191    Pa.    261,    43    Atl. 

215,  6  Am.  Neg.  R.  383.. 20,  22. 
Thomas   v.    Harrington    (1903), 

72  N.  H.  45,  54  Atl.  285.  65  L. 
R.  A.  742,  16  Am.  Neg.  R.  608, 
n..67,  68,  93. 

Thompson    v.    Lowell,    etc.,    R. 

(1898),  170  Mass.  577,  49  N.  E. 

913,  40  L.  R.  A.  345,  64  Am.  St. 

323..  72,  150. 
Thompson     v.     West     Bay     City 

(1904),    137    Mich.    94,    100   N. 

W.   280,   16  Am'.    Neg.   R.   607. 

n..l45. 
Thornton    v.    Lennon    (1898),    29 

App.   Div.  628,  51    N.  Y.   Supp. 

433.. 105. 


Thornton  v.  Hogan  (1903),  82 
App.  Div.  500,  81  N.  Y.  Supp. 
544.. 
Thorpe  v.  New  York,  etc.,  R. 
(1879),  76  N.  Y.  406.  32  Am.  R. 
325. .135. 
Threlkeld    v.     White     (1890),    8 

New  Zeal.  L.  R.  513.. 34,  35. 
Tibhetts  v.  Knox,  etc.,  R.   (1873), 
62  Me.  437.. 72,  73,  116. 

Tiffin  V.    McCormack    ( ).  34 

Ohio  St.  638,  32  Am.  R.  408.. 
73. 

Tillet  V.  Norfolk,  etc.,  R.   ( ), 

118  N.  C.   1031,  24  S.  E.  111.. 
126. 
Toledo  V.  Cone  (1884),  41  Oh.  St. 

149.. 181. 
Toledo,  etc..  Co.  v.  Bosch  (1900), 
41  C.  C   A.  482,  101  Fed.  530.. 
72,  110,  180,  193. 
Toledo,  etc.,  R.  v.  Beggs   (1877), 
85  111.  80,  28  Am.  R.  61 3..  133, 
165. 
Toledo,  etc.,  R.  v.  Conroy  (1890), 

39  111.  App.  351..  116. 
Toledo,     etc.,     R.     v.     Rumbold 

(1866),  40  111.   143..  122,  124. 
Trainor   v.    Philadelphia,    etc.,   R. 
(1890),    137    Pa.    148,    20    Atl. 
632.. 163,  183,  193. 
Tread  well  v.    New   York    (1861), 
1    Daly    (N.    Y.),    123.. 22,    70, 
201. 
Trego  V.  Honeybrook  (1894),  160 

Pa.   St.  76,  28  Atl.  639..  143. 
Tremain  v.  Cohoes  (1849),  2  N. 

Y.  163,  51  Am.  Dec.  284.. 73. 
Trinity,   etc.,  R.  v.   Lane    (1891), 
79  Tex.  643.  15   S.   W.  477,   16 
S.  W.  18..  126. 
Tucker    v.    Axbridge,    etc..     Bid. 
(1889),  Q.  B.  D.  53,  J.  P.  87.. 
35. 
Turner  v.    Great  Eastern   R.    Co. 
(1875),   33  L.  T.— N.   S.  431.. 
31. 

Turner  v.   McCarty    ( ),  4  E. 

D.   Smith    (N.   Y.),  247..  106. 


TABLE   OF    CASES. 


liii 


[References  are  to  sections.] 


Turner  v.  Newburg  (1888),  109 
N.  Y.  301.  16  N.  E.  344,  4  Am. 
St.  453.. 67,  139.  141.  145. 

Tyler  v.  Tehama  Co.  (1895),  109 
Cal.  618,  42  Pac.  240..  163. 


Ullman     v.     Hannibal,     etc.,     R. 

(1877),  67  Mo.   118.. 124. 
Ulrich    v.    New    York,    etc.,    R. 

(1888).  108  N.  Y.  80,  15  N.  E. 

60,  2  Am.  St.  369..  135. 
Union,   etc.,   R.   v.  Artist    (1894), 

60  Fed.  365..  149. 
Union,  etc.,  R.  v.  Billiter   (1890), 

28  Nebr.  422,  44  N.  W.  483.  16 

Am.  Neg.  Cas.  580,  n..l96. 
Union,  etc.,  R.  v.  Hause   (1871), 

1  W30.  27..  118. 
Union  Steamship  Co.  v.  The  Ara- 

can  (1874),  L.  R.,  6  P.  C.  127.. 

38. 
Uppington  v.  City  of  New  York 

(1901),  165  N.  Y.  222.  59  N.  E. 

91,  53  L.  R.  A.  550,  6  Am.  Neg. 

R.  366..  18,  20,  21,  53. 
Upton  V.  Townsend  (1855),  17  C. 

B.  30,  71.. 71. 


Vanderpool  v.  Husson  (1858),  28 

Barb.    (N.  Y.),  196..  100. 
Van  Steenburg  v.  Tobi.\s  (1837), 

17    Wend.    562,    31    Am.     Dec. 

310.. 230. 
Van    Tassell    v.    Manhattan,    etc.. 

Hospital    (1891),  39   N.   Y.   St. 

R.   781,    15    N.   Y.   Supp.  620.. 

149. 
Van  Winter  v.  Henry  Co.  (1883), 

61  Iowa,  684,  17  N.  W.  94..  140. 
Veazie    v.    Penobscot    R.    (1860), 

49  Me.  119..  19.  20. 
Veitch  V.  Jenkins  (1907),  107  Va. 

68,  57  S.  E.  574.. 38. 


Vermont,      etc.,     R.     v.      Baxter 

(1850),  22  Verm.  365..  124. 
Vickers  v.  Cloud  Co.   ((1898),  59 

Kans.  86.  52  Pac.  73..  147. 
Victoria,    The     (1895),    69    Fed. 

160.. 7. 
Vincennes    v.    Specs     (1905).    35 

Ind.   App.  389,  74  N.   E.  277.. 

140. 
Vincennes,     etc.,     Co.     v.     White 

(1890),  124  Ind.  376,  24  N.  E. 

747.. 20.  22,  203. 
Virginia,  etc.,  R.  v.  Sanger  (1859), 

15    Gratt.    (Va.),    230,    10    Am. 

Neg.  Cas.  366..  133,  134. 
ViRGiNi.\,  ETC.,  R.  V.  Washington 

(1890),   86   Va.    629,    10   S.    E. 

927,    43    Am.    &    Eng.    R.    Cas. 

688,  7  L.  R.  A.  344..  126. 
VoGEL  V.   New   York    (1883),  92 

N.  Y.   10,  44  Am.  R.  349..  170, 

176. 
Vosbeck    v.    Kellogg    (1899),    78 

Minn.    176,   80   N.   W.  957.  .20, 

25.  28,  65,  102. 
Vosburgh    v.    Lake    Shore,    etc., 

R.  (1884),  94  N.  Y.  374,  46  Am. 

R.  142..  187,  188. 


Wabash,     etc.,     R.     v.     Farver 

(1887).  Ill   Ind.  195.  12  N.  E. 

296,  60  Am.  R.  696.  31  A.  &  E. 

Ry.  Cas.  134.. 37,  38,  67,  74,  92. 
Wabash,  etc.,  R.  v.  Kelley  (1899). 

153  Ind.  119..  149. 
Wabash,     etc.     R.     v.     Peyton 

(1883),  106  111.  534,  46  Am.  R. 

705..  134. 
Wabash,    etc.,    R.    v.    Shacklet 

(1883),  105  111.  364,  44  Am.  R. 

791.. 126. 
Wabash,    etc.,    R.    v.    Williamson 

(1891),  3  Ind.  App.  190,  29  N. 

E.  455.. 123. 
Wads  worth    v.    Duke    (1873),    50 

Ga.  91.. 201. 


liv 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Wadsworth,  etc.,  Co.  v.  Foster 
(1893),  50  111.  App.  513; 
(1897),  168  111.  514.  48  N.  E. 
163..  38. 
Wagner  v.  Boston,  etc.,  R.  (1905), 
188  Mass.  437,  74  N.  E.  919.. 
210. 
Walker    v.    McMillan    (1882),    6 

Can.  S.  C.  R.  241.. 68. 
Wallace   v.    New    Castle,   etc.,    R. 
(1891).    11    Pa.    Co.    Ct.    347.. 
124. 
Wallace    v.     Southern,     etc.,    Co. 
(1897),  91   Tex.   18,  40  S.    W. 
399.  .20,  29,  207. 
Waller  v.   Lasher    (1890),   17   111. 

App.  609.. 69. 
Waltemever  v.  Wisconsin,  etc.,  R. 
(1887)^  71  Iowa,  626,  33  N.  W. 
140.    30    Am.    &    Eng.    R.    Cas. 
384.. 124. 
Wannamaker  v.  Rochester  (1892), 

17  N.  Y.  Supp.  321..  183. 
Ward  V.  Lee   (1857),  7  El.  &  Bl. 

426. .216. 
Ward  V.   New  England,  etc.,  Co. 
(1891),  154  Mass.  419,  28  N.  E. 
299.. 7,  29. 
Ward    V.    St.    Vincent's    Hospital 
(1899),  39  App.  Div.  624,  57  N. 
Y.  Supp.  784..  149. 
Ware  v.  Water  Co.  (1870),  2  Abb. 
(U.  S.),  261   (Cf.  Water  Co.  v. 
Ware). 
Washington,   etc.,   Co.  v.   Wilkin- 
.son    (1885,   Pa.),   1    Cent.   Rep. 
637,  2  Atl.  338.. 20. 
Washington,    etc.,    R.    v.    Brown 
(1873),  17  Wall.  (U.  S.),  445.. 
126. 
Water   Co.   v.    Ware    (1872),    16 
Wall.    (U.  S.),  566.. 65,  66,  67, 
73,  86,  110,  160. 
Waters   v.   Fuel   Co.    (1892),   52 
Minn.  474,  55  N.  W.  52,  32  Am. 
St.  564.. 34. 
Watson     V.     Oxanna,     etc.,     Co. 
(1891),  92  Ala.  320,  8  So.  770.. 
132,  220. 


Watson  Lodge  v.  Drake  (1895), 
16  Kv.  L.  Rep.  669,  29  S.  W. 
632..  is,  19. 
Weber  V.  Railroad  Co.  (1897), 
20  App.  Div.  292,  47  N.  Y. 
Supp.  7.. 86,  91,  168. 
Webster,    etc.,    Co.    v.    Mulvanny 

(1897),    68    111.    App.    607,    168 
111.  311,  48  N.  E.  168.. 206. 
Welch   V.    McAllister    (1884),    15 

Mo.  App.  492.. 206. 
Welch  v.  Maine,  etc.,  R.  (1894), 
86  Me.  552,  30  Atl.   116,  25  L. 

R.  A.  661.. 9. 
Welfare     v.      London,      etc.,     R. 

(1869).  L.  R.,  4  Q.  B.  693.. 32, 

35. 
Welsh  V.  Lehigh,  etc.,  Co.    (1886, 

Pa.),  5  Atl.  48.. 206. 
Welsh  V.  Parrish   (1892),  148  Pa. 

St.  599,  24  Atl.  86.. 22,  168,  206. 
Welsh  V.  St.  Louis  (1880),  73  Mo. 

71.. 139,  141. 
Wendler    v.    Equitable,    etc..    So- 
ciety   (1897),   45    N.    Y.    Supp. 

866..  20. 
Wertheimer  v.  Saunders  (1897), 

95  Wis.  573,  70  N.  W.  824,  37 

L.  R.  A.  146.. 70,  106,  109. 
West  V.  St.  Louis,  etc.,  R.  (1872), 

63  111.  545..  116,  206. 
West,   etc.,   R.   v.   Wakefield,   etc., 

Board    (1864),    33    L.    J.    Mag. 

Cas.— N.  S.  174.. 86. 
Wetherbee  v.   Partridge    (1899), 

175  Mass.  185,  55  N.  E.  894,  78 

Am.  St.  486.. 72,  >3,  95. 
Weyland  v.  Elkins  ( ),  Holt— 

N.  P.  227,  1  Starkie,  272.  .1.5,  49. 
Whelen  v.  Stevens  (1827),  2  Tay- 
lor (Ont.),  439.. 36. 
Wheelhouse  v.   Darch    (1877),  28 

U.  C.  C.  P.  269.. 88. 
White  V.  Green    (1904,  Tex.),  82 

S.  W.  329..  164. 
White  V.    New   York    (1897),    15 

App.  Div.  440,  44  N.  Y.  Supp. 

454.. 70,  143. 
White  v.  Philadelphia  (1902),  201 

Pa.  St.  512,  51  Atl.  332.. 53,  142. 


TABLE   OF    CASES. 


Iv 


[References  are  to  sections.] 


Whitney    v.    Atlantic,    etc.,    R. 

( 1857),  44  Me.  362,  69  Am.  Dec. 

103.. 126. 
Whitney  v.  Clifford   (1879),  46 

Wise.  138,  32  Am.  R.  703..  163. 
Whitney,    etc.,    Co.    v.    ORourke 

(1898),  68  111.  487,  172  111.  177, 

50  N.  E.  242.  .23,  34,  222. 
Whitson     V.     Ames     (1897),     68 

Minn.  23,  70  N.  W.  793,  2  Am. 

Neg.  R.  178.. 34. 
Wiener  v.  Halleck   ( ),   14  N. 

Y.  Supp.  365.. 73. 
Wiese  v.  Rcmme  (1897),  140  Mo. 

289,  41   S.  W.  797,  3  Am.  Neg. 

R.  222.. 1 06. 
Wiest    V.     Coal     Creek     Railroad 

(1906),  42  Wash.   176,  84  Pac. 

725..  7. 
Wiggin   V.    St.   Louis    (1896),   135 

Mo.  558,  37  S.  W.  528.. 92,  93, 

141. 
Wilber   v.    Follansbee    (1897),   99 

Wis.  577,  72  N.  W.  741,  73  Id. 

559.. 106,  109. 
Wilbur  V.   White    (1903),  98  Me. 

191.  56  Atl.  657,   16  Am.   Neg. 

R.  606,  n..35,  69. 
Wilkinson  v.  Detroit,  etc.,  Works 

(1889),  73  Mich.  405,  41  N.  W. 

490..  176,  183. 
Willard    V.    Newbury    (1850),   22 

Vt.  458..  141. 
Wm.    Cameron    Co.    v.    Realmuto 

(1907,  Tex.  Civ.  App.),   100  S. 

W.  194.. 20. 
William   F.    Babcock,  The,  In  re 

(1887),  31  Fed.  418.. 210. 
WiLLi.AMs   V.   Irrigation   Co. 

(1892),  96  Cal.  14,  30  Pac.  961, 

31  Am.  St.  172.. 70,  72,  85. 
Williams  v.   Pullman,  etc.,  Co. 

(1888).  40  La.  Ann.  417,  4  So. 

85.  8  Am.  St.  538..  135. 
Williams  v.   Tripp    (1878),   11    R. 

I.  447.. 97. 
Williamson   v.   Fisher    (1872),   52 

Mo.  198..  95. 
Williamson    v.   Louisville,   etc.. 

School   (1894),  95  Ky.  251,  44 


Am.   St.  243;    (1905).  78  Conn. 

276,  61  Atl.  1069..  149. 
Wilmot  v.  McPadden   (1906),  79 

Conn.  367,  65  Atl.  157,  19  L.  R. 

A.— N.  S.  1 101.. 94,  96,  165. 
Wilson     V.     Chicago     (1890),    42 

Fed.  506.. 222. 
Wilson  v.  City  of  Troy   (1892). 

135   N.   Y.  96.  32  N.  E.  44,  31 

Am.  St.  817,  18  L.  R.  A.  449.. 

141. 
Wilson   V.   Clark    (1892),   110   N. 

C.  364,  14  S.  E.  962.. 38. 
Wilson  V.  Merry  (1868),  L.  R.,  1 

H.  L.  326.. 184. 
Wilson  v.  Wheeling   (1882),   19 

W.   Va.  323,  42  Am.   St.  780.. 

139,  142. 
Wilson  v.  White  (1883),  71  Ga. 

506.  51  Am.  R.  269.. 66,  90. 
Wingert  v.   Krakauer    (1904),   87 

N.  Y.  Supp.  261..  1 69. 
Winterbottom    v.    Wright    (1842), 

10  Mees.  &  W.  109.. 224,  228. 
Wisconsin,     etc.,     R.     v.     Ross 

(1892),  142  111.  8.  31  N.  E.  412, 

12  R.  &  Corp.  L.  J.  81,  34  Am. 

St.  49..  126. 
Wiseham  v.  Rickard  (1890).  136 

Pa.  St.  109,  20  Atl.  532,  20  Am. 

St.  900,  10  L.  R.  A.  97.. 9. 
Wiswall    V.    Brinson     (1849),    10 

Ired.  L.   (N.  C),  554..  14,  47. 
Wittenberg   v.    Friedrich    (1896). 

40  N.  Y.  Supp.  895..  183,  188. 
Wolf  V.   American  Tract   Society 

(1898),  15  App.  Div.  98,  49  N. 

Y.  Supp.  236..  17.  92. 
Wood  V.  Cobb   (1866),  95   Mass. 

58,  13  Allen,  58.. 7,  31. 
Wood  V.  Independent  School  Dis- 
trict   (1876),   44   Iowa,    27.. 34, 

54. 
Wood    V.    Watertown    (1890).   58 

Hun,  298.  11  N.  Y.  Supp.  864.. 

144. 
Woodbury    v.    Post     (1893),    158 

Mass.  140,  33  N.  E.  86.. 229. 
Woodhill    v.    Great    Western    R. 

(1885),   4    U.    C.    C.    P.    449.. 

215. 


Ivi 


TABLE   OF    CASES. 
[References  are  to  sections.] 


Woodman    v.    Metropolitan    Ry. 

Co.    (1889),   149  Mass.  335,  21 

N.  E.  482,  4  L.  R.  A.  213,  14 

Am.   St.   427.   6   Rail.   &   Corp. 

L   J.  72.  12  Am.  Neg.  Cas.  80. . 

67.  69.  79,  91,  98,  110,  115,  125, 

130,  168. 
Woods  V.  Trinity  Parish    (1893), 

21  D.  C.  540.. 97. 
Woodward     v.     Peto     (1862),    3 

Post.  &  F.  389..  132. 
Worthington  v.  Parker  (1885),  U 

Daly    (N.    Y.),    545.. 106,    107, 

108. 
Wray    v.    Evans    (1876),    80    Pa. 

St.  102. 
Wright  v.  Big  R.\pids  Co.  (1900), 

124  Mich.  91,  82  N.  W.  829.  50 

L.  R.  a.  495..  18,  56. 
Wright  v.   Holbrook    (1872),  52 

N.   H.   120,    13  Am.  R.   12.. 24, 

34,  50. 
Wright      V.      London,      etc.,      R. 

(1866),  L.  R.,  1  Q.  B.  252.  .9. 
Wright  V.  Muskegon   (1905),  140 

Mich    215,  103  N.  W.  558.. 53, 

145. 
Wyllie   v.    Palmer    (1893),    137 

N.  Y.  248,  33  N.  E.  381,  19  L. 

R.  A.  285.. 7,  20. 
Wyman    v.     Penobscot,     etc.,    R. 

(1858),  46  Me.  162.. 20. 


Yewens  v.  Noakes   (1880),  L.  R., 

6  Q.  B.  D.  532.. 4. 
York  V.  Chicago,  etc.,  R.   (1896), 

98  Iowa,  544,  67  N.  W.  574.. 

38. 
York,  etc.,  R.  v.  Winans   (1854), 

17  How.  (U.  S.),  30..  126. 
Young    v.    Fosburg    Lumber    Co. 

(1908,  N.  C),  68  S.  E.  654,  16 

L.  R.  A.— N.  S.  255.. 26,  27,  28, 

65,  72,  100. 
Young    V.     New    York,    etc.,    R. 

(1859),  30  Barb.  (N.  Y.),229.. 

196. 
Young  v.  Smith,  etc..  Co.  (1905), 

124  Ga.  475,  4  Am.  &  Eng.  Ann. 

Cas.  226,  19  Am.  Neg.  R.  132. . 

228 
Young  V.  Trapp   (1904),  118  Ky. 

813,  82  S.  W.  429.. 92. 


Ziebell  v.  Eclipse,  etc.,  Co.  (1903), 

33  Wash.  591,  74  Pac.  680.. 34. 
Zieman    v.     Kieckhefer     Elevator 

Co.  (1895),  90  Wise.  497,  63  N. 

W.  1021..  224. 
Zimmerman  v.   Bauer    (1894),   11 

Ind.  App.  607,  39  N.  E.  299..  16, 

92. 


Independent  Contractors  and 
Xkeir  Liability. 


CHAPTER    I. 


Who  are  Independent  Contractors. 


SECTION 

1.  Representation. 

2.  Distinction     between     agents       18. 

and   servants. 

Agent  defined.  19. 

Master  and  servant  defined.         20. 

Same — Servants   by   estoppel.       21. 

Same — Servants  of  two  mas-       22. 

tors. 
Same — Transfer  of  service.  23. 

Same — Compulsory  service.  24. 

Same — Volunteers     as     serv-       25. 

ants. 
Basis  of  constituent's  liability.       26. 
Same — Of  principal's  liability. 
Same — Of  master's  liability.         27. 
Distinction — Between  servants 

and     independent     contrac-       28. 

tors. 
Same — Between    agents    and       29. 

independent  contractors. 
Doctrine    of    respondeat    su-       30. 

(ycrior. 
Independent     contractor     de-       31. 

fined. 


3. 
4. 
5. 
6. 

7. 
8. 
9. 

10. 
11. 
12. 
13. 


14. 


15. 


16. 


SECTION 

17.     Relation  of  subcontractor. 

Tests  of  relation  of  indepen- 
dent contractor. 

Same — Retaining  control. 

Same- — How  far  retained. 

Same — Right  of  dismissal. 

Same — Supervision  or  ap- 
proval by  employer. 

Same — Same — By  architect. 

Same — Same — By  engineer. 

Same — Purpose  of  retaining 
control. 

Same — Surrendering  or  re- 
taining control  of  premises. 

Same — Construction  of  con- 
tract of  employment. 

Same — Same — Question  for 
court. 

Same — Same — Question  for 
jury. 

Same — Identity  of  employer 
and  independent  contractor. 

Same — Whose  servant  the 
wrongdoer  is. 


INDEPENDENT    CONTRACTORS    AND    THEIR    LLVBILITY. 


SECTION  SECTION 

32.  Same— Burden    of   proof,    on  36.     Same— Relation      determined 

whom.  by  statute. 

33.  Same — Obligation  of  personal  2)7.     Pleading  the  relation. 

performance  as  test.  38.     Particular  instances  of  inde- 

34.  Same — Compensation  as  test.  pendent  contractors. 

35.  Same— Character  of  work  as  39.     Effect  of  death  as  test. 

test. 


Sec.  1.     Representation. 

"Legal  obligations  are  either  primary  antecedent  obliga- 
tions   (imposed  either  by  one's  voluntary  undertaking  or 
by  the  law,  irrespective  of  one's  volition,  upon  grounds  of 
public  policy  or  utility)  or  secondary  substituted  obligations 
(arising  from  an  act  or  omission  resulting  in  a  breach  of 
a  primary  obligation).     .    .    .     Most  of  the  things  which  a 
man  may  do  in  person  he  may  do  through  a  representative ; 
accordingly,  through  a  representative  he  may  create  a  volun- 
tary primary  obligation,  or  he  may  commit  a  breach  of  a  pri- 
mary obligation  and  thus  impose  on  himself  a  secondary  sub- 
stituted obligation.     Representation,  therefore,  is  of  great 
importance  in  the  law  of  obligation.     It  creates  a  subsidiary 
range  of  obligation  differing  from  the  main  range  only  in 
the  fact  that  the  one  obliged  acts  mediately  through  a  repre- 
sentative   instead    of    immediately     in    person."  ^       "The 
Statute  of  Westminster  II,  Ch.  35,  as  if  voicing  a  principle 
of  universal  law,  recites  that  one  person  shall  not  be  pun- 
ished for  the  act  of  another.     .    .    .    Henceforth  no  one  was 
to  be  held  answerable  for  an  act  unless  he  himself  could  be 
brought  into  some  sort  of  connection  with  tlie  wrong."  ^ 
"The  vicarious  principle  by  which  the  master  was  in  early 
times  held  absolutely  responsible  for  the  tortious  acts  of  his 
servant  having  passed   away,  there   followed   a  period  of 


^Huff.     Agcy.,     2nd      ed.,     Sec.  "2  Street  Legal  Liab.,  440. 

1-3,  abridged. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  6 

some  hundreds  of  years  during  which  the  accepted  doc- 
trine was  that  tlie  master  could  not  be  held  responsible 
unless  he  had  consented  to  the  wrongful  act  or  had  actually 
commanded  it."  ^ 

Sec.  2.     Distinction  between  Agents  and  Servants. 

"Agency  is  a  term  signifying  the  legal  relations  estab- 
lished when  one  man  is  authorized  to  and  does  represent 
and  act  for  another.  The  one  represented  may  be  com- 
prehensively termed  the  constituent  (specifically,  either  a 
principal  or  master)  and  the  one  representing  him  may  be 
termed  the  representative  (called  either  an  agent  or 
servant).  .  .  .  One  person  may  act  in  the  interest  of 
another  without  being  technically  his  agent  or  servant.  In 
order,  therefore,  to  delimit  our  subject,  we  must  first  set 
aside  and  distinguish  these  analogous  legal  relations."  ^ 
The  fundamental  distinctions  between  the  two  are  to  be 
sought  in  the  nature  of  (1)  the  act  authorized,  (2)  the 
obligation  resulting  from  the  performance  of  the  act,  (3) 
the  legal  test  fixing  the  constituent's  liability  for  an  act 
in  excess  of  authority.  ^'  "There  is  no  substantial  difference 
between  the  test  as  formulated  in  contract  and  tort.  When 
speaking  in  the  language  of  the  books  on  master  and  serv- 
ant, we  say  that  the  master  is  liable  for  any  act  of  the 
servant  done  in  the  course  of  his  employment  and  in 
furtherance  of  it.  When  speaking  in  accepted  terms  of  the 
law  of  principal  and  agent  we  say  the  principal  is  bound 
by  any  contract  which  the  agent  makes  while  acting  in  the 
scope  of  his  apparent  authority.  Both  statements  amount 
to  the  same.  In  every  case  the  first  and  fundamental  question 
is,    What    has    the   principal    (constituent)    set    his    repre- 


3 


Id.  442.  °  Id.   Sec.  4.  abridged. 

*  Huff.     Agcy.,     2nd     ed.,     Sec. 
1-3,   abridged. 


4  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

sentative  to  doing?  What  end  does  he  intend  for  him  to 
accomplish?  What  means  are  proper  to  be  used  in  exe- 
cuting- the  purpose?"  ^  "The  two  branches  of  the  law  are 
intimately  connected,  and  there  never  has  been  a  time  when 
cases  on  master  and  servant  were  not  cited  as  authority  in 
the  law  of  principal  and  agent,  and  vice  versa."  "'  "It  must 
always  be  borne  in  mind  that  the  law  of  principal  and  agent 
is  merely  a  branch  of  the  broader  doctrine  of  master  and 
servant  and  a  common  principle  underlies  both."  ^ 

Sec.  3.     Agent  Defined. 

"In  the  common  language  of  life,  he  who  being  com- 
petent and  sui  juris  to  do  any  act  for  his  own  benefit  or 
on  his  own  account,  employs  another  person  to  do  it,  is 
called  the  principal,  constituent  or  employer;  and  he  who 
is  thus  employed,  is  called  the  agent,  attorney,  proxy  or 
delegate  of  the  principal,  constituent  or  employer.  The  re- 
lation thus  created  between  the  parties  is  termed  an 
agency."  ^  An  agent  is  a  representative  vested  with  author- 
ity, real  or  ostensible,  to  create  voluntary  primary  obligations 
for  his  principal,  by  making  contracts  with  third  persons, 
or  by  making  promises  or  representations  to  third  persons 
calculated  to  induce  them  to  change  their  legal  relations.  ^"^ 

Sec.  4.     Master  and  Servant  Defined. 

A  master  is  one  who  stands  to  another  in  such  a  rela- 
tion that  he  not  only  controls  the  result  of  the  work  of  that 
other,  but  also  may  direct  the  manner  in  which  such  work 
shall  be  done.  ^^     A  servant  is  a  representative  vested  with 

•2  Street  Legal  Liab.,  453.  "2  Street  Legal  Liab.  486,  criti- 

'  Id.      454.      citing      article     on       cising  "Estoppel  Theory." 

"Agents  and   Servants  Essentially  "  Story  Agcy.,  9th  ed.,  Sec.  3. 

Identical,"    by    C.     C.     Allen,    28  ^"  Huff.   Agcy.,  2nd    ed.,   Sec.  6. 

Amer.  Law  Rev.  9.  "  20  Amcr.  &  Eng.  Enc.  of  Law, 

2nd  ed.,  10. 


WHO    ABE   INDEPENDENT    CONTRACTORS.  O 

authority  to  perform  operative  acts  for  liis  master  not 
creating-  new  primary  obligations,  or  bringing  third  persons 
into  contractual  relations  with  the  master  or  otherwise 
causing  them  to  change  their  legal  position.  A  master 
comes  under  obligations  to  third  persons  by  the  act  of  his 
servant  only  when  the  servant  commits  a  breach  of  the 
master's  primary  obligations  and  thus  creates  secondary 
substituted  obligations.^^  "There  is  high  authority  for  the 
doctrine  that  the  possession  or  non-possession  of  the  right  of 
control  may,  in  some  instances,  determine  whether  the  person 
employed  was  a  servant  or  an  agent."  ^^  "A  servant  is 
one  who  is  employed  to  render  personal  services  to  his 
employer  otherwise  than  in  the  pursuit  of  an  independent 
calling."  ^"^  The  legal  term  "servant"  is  sometimes  ex- 
pressly defined  by  statute.  ^^  The  case  of  an  apprentice 
may  be  embraced  under  this  head;  for  although  he  does 
not  always  bargain  in  respect  to  the  services  on  his  own 


'^'Huff.  Agcy.,  2nd  ed.,  Sec.  6.  of     control?"      Regina     v.     May 

"Note  to  Richmond  v.  Sitter-  (1861),  Leigh  &  C,  C.  C,  13.     In 

DING,    (1903,    101    Va.    354;   43    S.  a    prosecution    for    embezzlement, 

E.  562;  99  Am.  St.  Rep.  879;   16  Lord    Blackburn    said:    "The   test 

Am.  Neg.  Rep.  609,  n.)  ;  in  65  L.  is     very     much     like     this,     viz.: 

R.  A.  at  p.  447.     Bramwell,  B.,  is  whether    the    person    charged    is 

reported     as     having     said :      "It  under   the    control   and   bound   to 

seems   to    me   that    the    difference  obey     the     orders     of     another.'' 

between   the    relations    of    master  Regina  v.  Negus   (1873),  L.  R.  2 

and    servant    and    principal    and  N.  C.  37.     "A  servant  is  a  person 

agent  is  this:  a  principal  has  the  subject    to    the    command    of    his 

right  to  direct  what  the  agent  has  master,  as  to  the  manner  in  which 

to  do ;  but  a  master  has  not  only  he    shall    do    the    work."      Bram- 

that   right,   but    also   the   right   to  well,  L.  J.,  in  Yewens  v.   Noakes 

say  how  it  is  to  be  done."    Regina  (1880),  L.  R.  6  Q.  B.  Div.,  532. 

V.  Walker   (1858),  as  reported  in  "  Murr.w    v.    Dvvight    (1900), 

27  L.  J.  Mag.   Cas.    (N.   S.)   208.  161   N.  Y.  301,  55  N.  E.  901 ;  48 

Chief  Justice  Cockburn  pertinent-  L.  R.  A.,  673. 

ly    asked:     "Does    not    the    word  "'Calif.    Civil    Code,    Sec.    2009; 

'clerk'  or  'servant'  imply  the  exis-  Dak.   Civil   Code  Sec.   1157;   New 

tence    in    some    one    of    a    power  York   Code,   Sec.    1034. 


6  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

behalf,  some  one  whom  the  law  authorizes  to  speak  for  him 
does  so,  and  the  relation  established  is  strictly  one  resting 
on  an  agreement  for  services  in  return  for  a  consideration 
of  some  sort  which  the  master  is  to  render.  ^^ 


Sec.  5.     Servants  by  Estoppel. 

However,  the  employer  may  estop  himself  from  showing 
that  a  mechanic  in  his  employ  is  an  independent  contrac- 
tor, when  he  holds  himself  out  as  master.  Thus  where  the 
defendant  held  itself  out  as  practicing  dentistry  in  one  of 
the  departments  of  its  store,  it  was  declared  liable  for  the 
malpractice  of  the  dentists,  although  they  were  in  fact 
practicing  on  their  own  account.  ^'^  "But  this  is  estoppel 
to  deny  the  existence  of  the  relation  merely.  The  liability 
for  a  tort  committed  by  such  ostensible  servant  is  fixed  by 
the  ordinary  rule  applicable  to  master  and  servant.  Es- 
toppel to  deny  the  existence  of  the  relation  could  not  be 
invoked  where  the  third  person  is  not  thereby  induced  to 
change  his  legal  relations  or  position.  .  .  .  Yet  one  may 
be  estopped  to  deny  that  another  is  his  servant  where  by 
so  representing  him  third  persons  have  been  induced  lo 
entrust  their  person  or  property  to  his  care  or  treatment."  ^^ 
A  father  was  employed  by  the  defendant  company  to 
mine  coal  at  a  specified  price  per  ton,  and  had  his  boy  to 
assist  in  the  work,  with  the  knowledge  and  consent  of  the 
company.  The  boy  was  held  to  be  a  servant  of  the  company 
as  respects  the  duty  owed  him  by  the  company.  ^^ 

^'Cooley    on    Torts     (Students'  ^"^  Huff.  Agcy.,  2nd  ed,  196,  296, 

ed.,  1907),  p.  471.  citing   Hannon   v.    Siegel-Cooper 

"  Hannon  v.  Siegel-Cooper  Co.  Co.,  supra. 

ri901),   167  N.  Y.  244,  60  N.  E.  "  Ringue    v.    Oregon,    etc.,    Co. 

597;  52  L.  R.  A.  429.    Cf.  Sec.  1.  (1904),  44  Ore.  407;  75  Pac.  703. 
n.  S. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


Sec.  6.     Servart  of  Two  Masters. 

"It  often  happens  that  there  is  a  sort  of  duality  of 
service."  ~"  "Doubtless,  no  man  can  serve  two  masters, 
yet  the  law  recognizes  a  sort  of  duality  of  service.  A  gen- 
eral servant  of  one  person  may,  for  a  particular  work,  be- 
come pro  Iiac  vice,  the  servant  of  another  person."  ^^  Of 
course,  the  same  person  may  be  acting  in  a  particular  trans- 
action as  the  servant  of  two  masters,  as  when  the  afifairs 
of  two  corporations  are  carried  on  at  the  same  place  and 
by  the  same  employees.  If  it  is  found  as  a  matter  of  fact 
that  the  tort  was  committed  by  one  while  rendering  serv- 
ice to  both  corporations,  both  will  be  liable.  ^^  Thus,  plain- 
tiff was  injured  at  a  railroad  crossing  by  reason  of  the 
negligence  of  the  flagman  stationed  there.  There  were  two 
sets  of  tracks  at  the  crossing,  one  belonging  to  defendant 
and  one  to  another  company,  which  latter  employed  and 
paid  the  flagman.  He  had  been  employed  at  this  crossing 
ten  years,  during  which  time  he  had  flagged  defendant's 
train.  The  court  held  the  facts  justified  a  finding  that  the 
flagman  was  a  servant  of  the  defendant  company.  ^^  In 
another  case  one  S.  for  a  long  time  previous  to  a  given  date 
had  acted  as  agent  for  both  an  express  company  and  de- 
fendant telegraph  company,  and  was  well  informed  of  plain- 
tiff's method  of  doing  business  with  his  correspondent 
D.     S.  sent  D.  a  forged  telegram,  purporting  to  be  from 


="Bu!-d.  Torts,  p.  137,  citing 
and  quoting  from  Delaware,  etc., 
Railroad  Co.  v.  Hardy  (1896), 
59  N.  J.  Law  35,  37;  16  Am.  Neg. 
Cas.  658.  n.,  34  Atl.  986;  Atwood 
V.  Chicago,  etc.,  Railroad  Co. 
(1896),  72  Fed.  447,  454. 

^  Delaware,  etc..  Railroad  Co.  v. 
Hardy,  supra. 

^  Dietliers  v.  St.  Paul,  etc.,  Co. 
(1902),  86  Minn.  474:  91   N.  W. 


15.  Cf.  McCoRD  V.  Western 
Union  Tel.  Co.  (1888),  39  Minn. 
181;  39  N.  W.  315;  1  L.  R.  A. 
143;  12  Amer.  St.  Rep.  636;  Huff. 
Cas.  Agcy.  306. 

^  Denver,  etc.,  Railroad  Co.  v. 
Gustafson  (1895),  21  Colo.  393; 
41  Pac.  505.  Cf.  Brow  v.  Boston, 
etc..  Railroad  Co.  (1892).  157 
Mass.  399;  32  N.  E.  362. 


8 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  plaintift  and  requesting  the  remittance  of  a  large  sum 
of  money.  The  money  was  duly  sent  by  express  and  was 
intercepted  and  abstracted  by  'S.,  who  converted  it  to  his 
own  use.  The  defendant  telegraph  company  was  held 
liable.  2-1 

Sec.  7.     Transfer  of  Service.  25 

When  the  servants  of  one  person  are  hired  or  loaned  to 
another,  they  become  the  servants  of  the  latter  for  the  time 
beine.  -'^  If  the  servants  of  a  master  are  sent  to  do  work 
upon  the  property  or  premises  of  another,  they  will  be- 
come the  servants  of  the  latter  if  they  work  under  his 
directions  and  control.  ^^     If  A.  leases  or  lends  his  servant 


-*McCoRD  V.  Western  Union 
Tel.  Co.,  supra.  "The  acts  of  S. 
as  agent  of  the  defendant  and  of 
the  express  company  were  the  ex- 
ecution of  the  different  parts  of 
one  entire  plan  or  scheme.  That 
his  subsequent  acts  aided  and  con- 
curred in  producing  the  result 
aimed  at,  did  not  make  the  forged 
despatch  any  the  less  operative  as 
the  procuring  or  proximate  cause 
of  plaintiff's  loss."  (Per  Vander- 
burgh, J.) 

^  See,  generally,  Huff.  Agcy., 
2d  ed.,  chap.  18. 

*  Cotton  v.  Lindgren  (1895), 
106  Cal.  602;  39  Pac.  939;  46 
Amer.  St.  Rep.  255;  Brown  v. 
Smith  (1890),  86  Ga.  274;  12  S. 
E.  411;  14  Am.  Neg.  Cas.  80,  n. ; 
22  Amer.  St.  Rep.  456;  Kimball 
V.  CusHMAN  (1869),  102  Mass. 
194;  4  Amer.  Rep.  528;  Hasty  v. 
Se.-^rs  (1892),  157  Mass.  123;  31 
N.  E.  759 ;  34  Amer.  St.  Rep.  267 ; 
Driscoll    V.    Towle     (1902),     181 


Mass.  416;  63  N.  E.  922;  Dela- 
ware, etc..  Railroad  Co.  v.  Hardy 
(1896),  59  N.  J.  Law,  35;  34  Atl. 
986;  16  Am.  Neg.  Cas.  658,  n. ; 
HiGGiNs  V.  Western  Union  Tel. 
Co.  (1898),  156  N.  Y.  75;  50  N. 
E.  500;  66  Amer.  St.  Rep.  537; 
Burd.  Cas.  Torts,  413,  note; 
Powell  v.  Construction  Co. 
(1890),  88  Tenn.  692;  13  S.  W. 
691 ;  17  Amer.  St.  Rep.  925. 

="  Green  v.  Sansom  (1899),  41 
Fla.  94;  25  So.  332;  Wood  v.  Cobb 
(1866),  13  Allen  (Mass.),  58; 
Ward  V.  New  England,  etc.,  Co. 
(1891),  154  Mass.  419;  28  N.  E. 
219;  Hastey  v.  Sears  (1892),  157 
Mass.  123 ;  31  N.  E.  759 ;  34  Amer. 
St.  Rep.  267;  Delory  v.  Blodgett 
(1904),  185  Mass.  126;  69  N.  E. 
1078;  64  L.  R.  A.  114;  Roe  v. 
Winston  (1902),  86  Minn.  77;  90 
N.  W.  122;  Mclnerny  v.  Dela- 
ware, etc.,  Co.  (1897),  151  N.  Y. 
411;  45  N.  E.  348;  Wiest  v.  Coal 
Creek  Railroad   (1906),  42  Wash. 


WHO    .VBE    INDEPENDENT    CONTRACTORS.  ^ 

to  B.  pursuant  to  an  arrangement  by  whicli  B.  is  to  have 
the  right  to  direct  the  acts  or  control  the  conduct  of  the 
servant,  B.  must  respond  for  the  torts  of  the  servant  while 
thus  engaged.  ^^  With  respect  to  certain  acts  of  servants 
in  general,  A.  may  retain  the  right  of  control  while  with 
respect  to  others,  the  right  of  control  may  be  vested  in  B. 
In  such  case  A.  or  B.  will  be  liable  according  as  the  negli- 
gent act  belongs  to  the  one  or  the  other  class.  For  ex- 
ample, if  A.  lets  his  horses,  wagon  and  driver  to  a  city, 
which  is  engaged  in  paving  a  street,  and  through  the  neg- 
ligence of  the  driver,  in  looking  after  the  shoeing  of  the 
horses  and  driving  them,  a  horse  kicks  a  loose  shoe  through 
the  plaintiff's  plate  glass  window,  A.  and  not  the  city  is 
liable.  ^^  But  if  A.  lets  his  horses,  etc.,  to  a  city,  which 
is  engaged  in  paving  a  street,  or  the  like,  and  the  plaintiff 
is  injured  by  the  negligent  manner  in  which  the  servant 
carried  out  an  order  which  the  city  had  a  right  to  give  him 
the  city  would  be  liable.  ^"  When  one  furnishes  a  carriage 
and  driver  for  the  use  of  another,  the  presumption  is  that 


176;  84  Pac.  725;  Atlantic,  etc., 
Co.  V.  Coneys  (1897),  82  Fed. 
177;  28  C.  C.  A.  388;  Burd.  Cas. 
Torts.  403,  note;  Brady  v.  Chi- 
cago, ETC.,  Railroad  (1902).  114 
Fed.  100;  52  C.  C.  A.  48;  57  L.  R. 
A.  712.  Otherwise  not:  Wylie  v. 
Palmer  (1893),  137  N.  Y.  248; 
33  N.  n:.  381;  19  L.  R.  A.  285: 
Connelly  v.  Faith  (1899),  190  Pa. 
St.  553;  42  Atl.  1024;  Burton  v. 
Galveston,  etc..  Railroad  (1884), 
61  Te.x.  526;  21  Am.  &  Eng.  Ry. 
Cas.  218. 

=^  Donovan  v.  Long  (1893).  1 
Q.  B.  629;  63  L.  J.  Q.  B.  25; 
Burd.  Cas.  on  Torts,  409;  Delory 
V.  Blodgett,  supra;  Roe  v.  Win- 
ston,   supra:    Mclnerny    v.    Dela- 


ware, etc.,  Railroad,  supra;  Hig- 
GiNs  V.  Western  Union  Tel.  Co., 
supra;  Rourke  v.  White  Moun- 
tain, etc.,  Co.  (1877),  2  C.  P.  D. 
205;  46  L.  J.  C.  P.  283;  Grace  v. 
Hyde,  etc.,  Co.  (1904),  208  Ills. 
147;  70  N.  E.  12. 

^HuFF  V.  Ford  (1878),  126 
Mass.  24;  30  Amer.  Rep.  645; 
Delory  v.  Blodgett,  supra;  Con- 
solidated, etc.,  Co.  V.  Kiehl  (1901), 
190  Ills.  145;  60  N.  E.  87;  16  Am. 
Neg.  Rep.  613.  n. 

^Donovan  v.  Long,  sup>\t; 
Driscoll  v.  Towle  (1902).  181 
Mass.  416;  63  N.  E.  922;  Roe  v. 
Winston  (1902).  86  Minn.  77,  86; 
90  N.  W.  122. 


10 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  driver  is  the  servant  of  the  owner.  '"^^  In  all  such  cases 
the  test  is,  whether,  in  the  particular  service  which  the 
servant  is  engaged  to  perform,  he  continues  liable  to  the 
direction  and  control  of  his  general  master  or  becomes  sub- 
ject to  that  of  the  party  to  whom  he  is  lent  or  hired.  ^^ 


*^Sacker  v.  Waddell  (1903), 
98  Md.  43;  56  Atl.  399;  103  Amer. 
St.  Rep.  374;  Fenner  v.  Crips 
Brothers  (1899),  109  Iowa,  155; 
80  N.  W.  526;  Huff  v.  Ford, 
supra;  Joslin  v.  Grand  Rapids 
Ice  Co.  (1883),  50  Mich.  516;  45 
Amer.  Rep.  54;  McColUgan  v. 
Pennsylvania  Railroad  Co.  (1906), 
214  Pa.  St.  229;  53  Atl.  792;  6  L. 
R.  A.  (N.  S.),  544;  112  Am.  St. 
739. 

^Coughlin  V.  Cambridge  (1896), 
166  Mass.  268;  44  N.  E.  218; 
Delory  v.  Blodgett,  supra;  Con- 
solidated, etc.,  Co.  V.  Kiehl,  supra; 
Grace,  etc.,  Co.  v.  Probst  (1904), 
208  Ills.  147,  76  N.  E.  12.  Cf. 
Sacker  v.  Waddell,  supra.  "It 
often  happens  that  a  man  is  hired 
and  paid  by  A.,  and  thus  becomes 
his  servant,  but  for  certain  trans- 
actions is  transferred  by  A.  to  the 
service  of  B.  While  thus  engaged 
about  B.'s  affairs,  he  tortiously  in- 
jures a  third  person.  Is  A.  or  B. 
to  respond  as  master  for  the  dam- 
age? Upon  principle,  the  answer 
would  seem  not  to  be  difficult  and 
that  A.  or  B.  should  be  liable,  ac- 
cording as  the  one  or  the  other 
had  the  right  to  control  the  act 
or  omission  which  caused  the 
harm.  And  such  seems  to  be  the 
answer  given  by  the  best  con- 
sidered cases."  Burdick  on  Torts, 
136.      There    are    numerous    in- 


stances  wherein   the   existence   of 
a  general  relation  of  master  and 
servant  between  two  persons  does 
not   exclude  the   like  relation  be- 
tween   such    servant   and    a   third 
party,   to  the   extent  of  a   special 
service  wherein  he  is  actually  en- 
gaged ;  accordingly  servants  in  the 
general    employ    of    a    contractor 
or   of    his    employer   may   be   the 
servants    of    the    other    for    some 
special  purpose.     Johnson  v.  Bos- 
ton (1875),  118  Mass.  114;  Hardy 
v.  Shedden  Co.   (1897),  47  U.  S. 
App.  362;  78  Fed.  672;  37  L.  R. 
A.    33,   per   Taft,   J.;    The    Cole- 
ridge (1896),  72  Fed.  676;  Killea 
V.  Faxon    (1877),  125  Mass.  485; 
Breslin  v.  Sparks  (1904),  97  App. 
Div.  69;  89  N.  Y.  Supp.  627;  Cun- 
ningham   v.     Syracuse,    etc.,    Co. 
(1897),  20  App.  Div.  171;  46  N. 
Y.    Supp.   954;    Pioneer,    etc.,   Co. 
V.  Clifford    (1906),  125  Ills.  App. 
352,  question  for  jury;   Otis,  etc., 
Co.  V.  Wingle  (1907),  82  C.  C.  A. 
62;   152  Fed.  914;   Illinois,  etc., 
Co.  V.  Cox  (1858),  21  Ills.  20;  71 
Amer.   Dec.    298,    contra;   Coggin 
V.   Central  Railroad   (1879),  62 
Ga.    685;    35    Amer.    Rep.     132; 
Mills  V.  Thomas,  etc.,  Co.  (1900), 
54  App.  Div.  124;  66  N.  Y.  Supp. 
398;  172  N.  Y.  660;  65  N.  E.  1119; 
Moran  v.  Carlson  (1904),  95  App. 
Div.    116;    88   N.    Y.    Supp.    520; 
McDonough  v.   Pelham,   etc.,   Co. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


11 


Sec.  8.    Compulsory  Service. 

"If  one  is  compelled  by  law  to  accept  another's  services, 
he  ought  not  to  be  answerable  for  injuries  caused  by  the 
latter.  So,  if  one  is  compelled  by  law  to  serve  another,  he 
should  not  be  considered  a  fellow-servant  of  other  em- 
ployees so  as  to  preclude  recovery  for  their  negligence. 
Whether  such  former  employment  is  compulsory  may  de- 
pend upon  the  range  or  power  of  selecting  employees."  ^^ 
"Those  who,  under  a  public  license,  exercise  a  certain  em- 
ployment on  behalf  of  any  member  of  the  public  who  may 
hire  them  (such  as  licensed  public  carmen,  drovers,  pilots, 
draymen)  do  not  stand  in  the  relation  of  servant  to  any  one 
who  may  hire  them  to  do  a  particular  job,  such  as  they  are 
licensed  to  do,  but  are  deemed  independent  contractors ;  but 
this  rule  has  its  limitations,  for  the  fact  that  a  man  is 
obliged  by  law  to  select  servants  to  carry  on  a  particular 
employment  from  a  particular  class  of  men  skilled  in  such 
employment  and  licensed  to  follow  it,  does  not  exclude  the 
possibility  of  relation  of  master  and  servant  existing  be- 
tween them."  ^^  A  pilot,  whom  the  master  of  a  vessel  is 
compelled  by  law  to  accept,  is  not  his  servant.  ^^    One  who 


(1906),  111  App.  Div.  585;  98  N. 
Y.  Supp.  90;  Gerlach  v.  Edel- 
meyer  (1881),  15  Jones  &  S.  392; 
88  N.  Y.  645.  As  to  winch  men 
and  stevedores'  servants,  see  The 
Harold  (1884),  21  Fed.  428;  The 
Joseph  John  (1898),  86  Fed.  471; 
30  C.  C.  A.  199;  The  Anaces 
(1898),  87  Fed.  565;  The  Elton 
(1906),  142  Fed.  367;  73  C.  C.  A. 
467;  The  Victoria  (1895),  69  Fed. 
160;  The  Lisnacrieve  (1898),  135 
Fed.  879,  (1906)  143  Fed.  955; 
Standard  Oil  Co.-  v.  Anderson 
(1907),  152  Fed.  166;  81  C.  C.  A. 
399;    The    Slingsley    (1902),    120 


Fed.  748;  The  Gladestry  (1904), 
128  Fed.  591.  Cf.  S.anford  v. 
St.\nd.\rd  Oil  Co.  (1890),  118  N. 
Y.  576;  24  N.  E.  313;  16  Amer.  St. 
Rep.  787;  Laitro  v.  Standard  Oil 
Co.  (1902).  74  App.  Div.  4;  76  N. 
Y.  Supp.  800;  Johnson  v.  Nether- 
lands, etc.,  Co.  (1892),  132  N.  Y. 
576;  30  N.  E.  505. 

^  See.  generally,  Huff.  Agcy., 
2d  ed.,  Sec.  235. 

''  Thompson  Negligence,  Sec. 
638. 

""  Steam  Navigation  Co.  v.  Brit- 
ish, etc..  Navigation  Co.  (1S6S), 
L.   R.   3   Exch.  330.     Contra,   se- 


12 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


hires  convict  labor  is  liable  as  master  to  a  convict  "in  respect 
to  those  incidents  of  the  employment  over  which  he  has  the 
same  measure  of  control  that  a  master  ordinarily  has,  but 
not  as  to  those  features  of  the  employment  over  which  he 
is  essentially  deprived  of  such  control."  ^"  Under  such  cir- 
cumstances the  mere  presence  of  the  government  employee, 
who  has  charge  of  the  convicts,  does  not  relieve  the  hirer 
of  the  convicts  from  his  liability  for  the  tortious  conduct 
of  his  own  agent.  ^"^ 

Sec.  8.     Volunteers  as  Servants. 

One  who  voluntarily  assists  a  servant  at  the  latter's  re- 
quest does  not,  as  a  general  rule,  become  a  servant  of  the 
•  master,  so  as  to  impose  upon  the  latter  the  duties  and  liabili- 
ties of  a  master  towards  such  volunteer,  or  so  as  to  render 
the  master  liable  to  third  persons  injured  by  such  volun- 
teer's acts  or  negligence,  while  rendering  such  assistance.  ^^ 
A  volunteer  is  one  who,  without  the  request  or  consent  of 


lecting  one  out  of  six  thousand 
bargemen.  Martin  v.  Temperly 
(1843),  4  Q.  B.  298.  Cf.  Story 
Agcy.,  9th  ed,  456o. 

**  Baltimore,  etc.,  Co.  v.  Jamar 
(1901),  93  Md.  404;  49  Atl.  847; 
86  Amer.  St.  Rep.  428;  Hartwig 
V.  Bay  State,  etc.,  Co.  (1887),  43 
Hun   (N.  Y.),  425. 

^  Chattahoochee,  etc.,  Co.  v. 
Braswell  (1893),  92  Ga.  631;  18 
S.  E.  1015 ;  see,  generally.  Huff. 
Agcy.,  2d  ed..  Chap.   19. 

^  Georgia,  etc..  Railroad  v. 
Propst  (1888),  85  Ga.  203;  4  So. 
711;  Atlanta,  etc..  Railroad  v. 
West  (1905),  121  Ga.  641;  49  S. 
E.  711;  104  Amer.  St.  Rep.  179; 
67  L.  R.  A.  701;  Church  v. 
Chicago,    etc.,    Railroad    (1892), 


50  Minn.  218;  52  N.  W.  647;  16 
L.  R.  A.  361 ;  Evarts  v.  St.  Paul, 
etc.,  Railroad  (1894),  56  Minn. 
141;  57  N.  W.  459;  45  Amer.  St. 
Rep.  460;  22  L.  R.  A.  663;  Longa 
V.  Stanley,  etc.,  Co.  (1903),  69  N. 
J.  Law,  31;  54  Atl.  251;  Wise- 
ham  V.  RicKARD  (1890),  136  Pa. 
St.  109;  20  Atl.  532;  20  Amer.  St. 
Rep.  900;  10  L.  R.  A.  97;  Langan 
V.    Tyler    (1902),    114    Fed.    716; 

51  C.  C.  A.  503;  Cincinnati, 
ETC.,  Railroad  v.  Finnell  (1900), 
108  Ky.  135;  55  S.  W.  902;  57  L. 
R.  A.  266.  (Such  a  volunteer 
assumes  all  the  risks  of  the  serv- 
ice upon  which  he  enters  and  is 
only  entitled  to  the  protection  due 
a  trespasser.) 


WHO    ABE    INDEPENDENT    CONTRACTORS. 


13 


the  master  of  his  authorized  representative,  undertakes  to 
perfonn  a  service  for  the  master,  either  as  a  mere  interloper 
or  in  order  to  advance  some  interest  of  tlie  voUmteer  or 
of  the  master.  -^^  But  if  the  servant  has  authority,  express 
or  imphed,  to  employ  assistants,  a  volunteer  assisting  is  a 
sub-servant,  both  in  his  relation  to  the  master  and  in  the 
latter's  relation  to  third  persons.  '^^'  When  a  passenger  is 
injured  by  the  negligence  of  a  volunteer  called  in  by  a 
servant,  even  though  without  the  knowledge  or  authority 
of  the  master,  the  master  has  been  held  liable.  ^^  "There 
is  an  increasing  class  of  cases  in  which  the  exercise  of  pro- 
portionate care  is  held  to  be  due  to  servants  of  different 
masters  who  assist  in  the  performance  of  a  service  mutually 
beneficial  to  such  employers,"  and  such  assisting  servants  are 
not  as  a  matter  of  law  to  be  treated  as  mere  volunteers.  ^- 

Sec.  10.    Basis  of  Constituents'  Liability. 

Representation  is  only  an  extension  of  the  fundamental 
conception  of  responsibility  for  one's  own  acts.     Both  in 


="See  Sec.  240,  Huff.  Agcy.,  2d 
ed. 

^"Haluptzok  v.  Great  North- 
ern Railroad  (1893),  55  Minn. 
446;  57  N.  W.  144;  26  L.  R.  A. 
739;  and  compare  Johnson  v. 
Ashland,  etc.,  Co.  (1888),  71 
Wis.  553 ;  37  N.  W.  823 ;  5  Amer. 
St.  Rep.  243. 

*^Lakin  v.  Oregon,  etc.,  Rail- 
road (1887),  15  Ore.  220;  15  Pac. 
355.  To  the  same  effect,  Althorf 
V.  Wolfe  (1860),  22  N.  Y.  355; 
master  held  liable  for  injuries 
caused  by  servant's  volunteer  as- 
sistant negligently  throwing  ice 
from  defendant's  roof,  the  master 
being  bound  to  see  that  his  prem- 


ises  were   so    used   as   not   to   in- 
jure others. 

^^  Kelly  v.  Tyra  (1908),  103 
iMinn.  176;  114  N.  W.  750;  17  L. 
R.  A.  (N.  S.),  343,  per  Jaggard, 
J.,  citing  inter  alia,  Wright  v.  Lon- 
don, etc.,  R.  (1866),  L.  R.,  1  Q. 
B.  252;  Hannigan  v.  Union,  etc., 
Co.  (1896),  3  App.  Div.  618;  38 
N.  Y.  Supp.  272;  Connors  v. 
Great  Northern,  etc..  Co.  (1904), 
90  App.  Div.  311;  85  N.  Y.  Supp. 
644:  Meyer  v.  Kenyon,  etc.,  Co. 
(1905),  95  Minn.  329;  104  N.  W. 
132;  Welch  v.  Maine,  etc.,  R. 
(1894),  86  Md.  552;  30  Atl.  116; 
25  L.  R.  A.  661. 


14  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

morals  and  in  law  one  is  responsible  for  the  things  which  he 
brings  to  pass,  whether  he  employs  an  inanimate  object  to 
effectuate  his  purpose  or  sets  in  operation  the  infinitely  more 
complicated  chain  of  causation  which  results  from  the  em- 
ployment of  another  moral  agent.^"**  "Michael  v.  Alestree 
(1677,  2  Lev.  172,  3  Keb.  650),  is  generally  looked  upon 
as  marking  the  beginning  of  the  modern  conception  of  the 
liability  of  masters  for  their  servants'  torts."  A  servant 
undertaking  to  train  horses  in  a  public  place  injured  a  by- 
stander, and  the  master,  though  absent,  was  held  liable, 
on  the  theory  of  presumptive  command.  The  master  and 
servant  were  joined  as  defendants,  and  both  were  held 
liable.  "Thereafter  the  idea  that  only  the  master  and  not 
the  servant  is  liable  for  damages  occasioned  by  the  latter's 
negligence  found  no  recognition."  '*^  "It  has  been  con- 
tended that  we  must  seek  the  basis  of  liability  in  cases  where 
the  representative's  acts  are  neither  commanded  nor  rati- 
fied, and  are  in  excess  of  any  actual  authority  conferred, 
(1)  in  the  fiction  of  identity,  (2)  in  the  voluntary  act  of 
the  employer  in  setting  the  representative  in  motion,  or 
that  one  must  answer,  within  reasonable  limits,  for  an  in- 
strumentality operating  for  his  benefit,  or  (3)  mainly  by 
the  practical  consideration  that  the  employer  is  usually 
better  able  to  pay  than  the  representative."  ^^ 

Sec.  11.    Basis  of  Principal's  Liability. 

"The  responsibility  of  the  principal  to  third  persons  is 
not  confined  to  cases  where  the  contract  has  been  actually 
made  under  his  express  or  implied  authority.  It  extends 
further  and  binds  the  principal  in  all  cases  where  the  agent 
is  acting  within  the  scope  of  his  usual  employment  or  has 
been  held  out  to  the  public  or  to  the  other  party  as  having 

"2  Street  Legal  Liab.,  429.  **Huflf.   Agcy.,    2d   ed.,    Sec.    5, 

"Id.,  451.  abridged. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  15 

competent  authority,  although,  in  fact,  he  has  in  the  par- 
ticular instance  exceeded  or  violated  his  instructions  and 
acted  without  authority.  For  in  all  such  cases,  where  one 
of  two  innocent  persons  is  to  suffer,  he  ought  to  suffer  who 
misled  the  other  into  the  contract  by  holding  out  the  agent 
as  competent  to  act  and  as  enjoying  his  confidence."  *'' 
"As  to  the  liability  of  principals  to  third  persons  for  the 
acts  of  their  agents.  This  topic  may  be  dismissed  in  a 
few  words;  for  the  whole  doctrine  turns  upon  the  obvious 
maxim,  that  he,  who  acts  by  another,  acts  by  himself.  .  .  . 
In  the  next  place,  as  to  the  liability  of  the  principal  to 
third  persons  for  the  misfeasances,  negligences  and  torts  of 
his  agent.  ...  In  all  such  cases  the  rule  applies,  re- 
spondcat  superior;  and  it  is  founded  upon  public  policy  and 
convenience ;  for  in  no  other  way  could  there  be  any  safety 
to  third  persons  in  their  dealings  either  directly  with  the 
principal  or  indirectly  with  him  through  the  instrumentality 
of  agents."  "*"  "Alost,  if  not  all,  the  liabilities  of  the  prin- 
cipal for  the  acts  of  his  agent  grow  out  of  the  fiction  of 
unity  or  identity;  the  contract  in  contemplation  of  law,  is 
entered  into  by  the  principal  himself,  for  he  and  the  agent 
are  identical."  "^^ 

Sec.  12.    Basis  of  Master's  Liability. 

"Many  reasons  have  been  assigned  by  different  writers 
for  holding  a  master  liable  for  damage  resulting  from  his 
servant's  negligent  act.  Nearly  all  of  them  have  been  criti- 
cised and  declared  inadequate.  .  .  .  The  most  hoary 
reason  is  that  long  ago  advanced  by  civilians,  namely,  that 
the  master  is  liable  because,  as  the  event  shows,  he  has 
employed  an  incompetent  servant.  Now  it  may  well  be 
conceded  that  the  master  should  be  liable  if  he  employs  a 

'•Story  Agcy.,  9th  ed.,  Sec.  443.  **Reinhard  Agcy..  Sec.  321. 

"Id..  Sees.  451.  452. 


16  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

person,  of  known  incompetency ;  or,  in  case  of  a  special 
hazard,  if  he  employs  one  of  doubtful  skill.  But  as  is  well 
known,  no  amount  of  care  in  choosing  a  servant  will  re- 
lieve the  master.  ...  In  dealing  with  (this  subject) 
Pollock  and  Maitland  suggest  that  the  desire  of  reaching  a 
person  financially  responsible  has  perhaps  unconsciously 
caused  the  courts  to  hold  the  master  liable  for  the  servant's 
torts  done  in  the  course  of  employment.  .  .  .  Still  an- 
other theory  was  advanced  a  number  of  years  ago  by  Judge 
O.  W.  Holmes.  He  endeavored  to  show  that  the  master's 
liability  for  the  negligent  tort  of  liis  servant  results  from 
the  application  of  the  ancient  fiction  of  identity  of  persons 
as  between  master  and  servant.  .  .  .  None  of  these  sev- 
eral theories  are  adequate  fully  to  explain  the  principle. 
.  .  .  Writers  on  legal  theory  have  been  trying  to  explain 
a  principle  which  the  law  accepts  as  axiomatic.  Axiomatic 
truth  in  law  as  elsewhere  must  be  accepted  as  fundamental 
and  unexplainabie.  The  axiom  with  which  we  have  to 
deal  is  embodied  in  the  statement  reiterated  by  our  courts 
time  and  again,  that  the  act  of  the  servant  is  the  act  ,of 
the  master.  This  is  a  true  legal  axiom,  because  the  common 
law  proceeds  upon  it  and  treats  it  as  a  fundamental  princi- 
ple. Qui  facit  per  aliuui,  facit  per  se.  ...  If  we  say 
that  where  the  master  sets  in  motion  a  chain  of  causes, 
using  for  that  purpose  the  hands  and  mind  of  another  free 
agent,  he  is  responsible  for  all  the  acts  done  by  his  repre- 
sentative in  the  conduct  of  the  principal's  business,  we  are 
merely  stating  the  axiom  in  another  form.  All  attempts 
to  get  nearer  to  the  ultimate  legal  truth  or  to  resolve  the 
axiom  into  simpler  elements  ^vi]l  prove  futile."  ^^ 

"During  the  nineteenth  century  the  wording  of  the  test 
by  which  the  master's  liability  is  to  be  determined  under- 
went a  change.      The  expression   'command  and  consent, 

"2   Street    Legal    Liab.,   p.   458,     ct  seq. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  17 

express  or  implied,'  was  completely  supplanted  by  the  'scope 
or  course  of  employment.'     This  change  in  the  phraseology 
of  the  test  marked  the  ripening  of  the  previous  presumption 
of  fact  into  the  positive  rule  of  law.     The  master  now  be- 
comes absolutely  liable  for  all  acts  done  in  the  course  of 
employment  even  though  there  be  contrary  private  instruc- 
tions and  the  act  itself  be  plainly  against  the  master's  in- 
terest." ^^*     As  a  general  proposition,  it  may  be  said  that 
the  liability  of  the  master  for  torts  committed  by  his  servant 
is  based  on  the  theory  of  selection  and  control,  either  actual 
or  implied ;  that  he  may  choose  who  shall  do  his  work,  di- 
rect how  it  shall  be  accomplished,  and  retain  or  discharge 
the  \vorkmen  at  his  option;  and  if  these  essential  principles 
of  representation   are   lacking   the   doctrine   of   respondeat 
superior  does  not  apply.     If  I  send  my  horse  to  the  smith 
to  be  shod,  although  he  and  his  helpers  do  my  work,  it  is 
evident  that  they  are  not  my  "servants"  within  the  accepted 
legal  sense  of  the  word,  and  that  I  am  not  responsible  for 
any  injury  that  may  come  to  others  through  their  negli- 
gent manner  of  doing  my  work:  and  if  I  engaged  a  car- 
penter to  make  and  deliver  to  me  a  box  of  certain  dimen- 
sions, it  is  still  quite  clear  that  I  can  not  be  compelled  to 
respond  in  damages  for  his  carelessness  in  executing  my 
order.     In  each  of  these  cases  the  contract  is  for  a  specific 
thing.     If  the  horse  is  returned  properly  shod,  or  the  box 
finished  acording  to  specifications,  it  is  immaterial  where, 
hoW',  or  by  whom  the  actual  work  is  done.     These  are  in- 
termediate considerations  over   which   the   employer  exer- 
cises neither  volition  nor  control.     In  such  conditions  the 
person    so   undertaking    to   achieve   a   certain    result,    free 
from  dictation  or  interference,   is  called,   for  purposes  of 
convenience,  an  independent  contractor.  ^^ 

"*  Id.,  456.  "  Barrows'    Neg.,   p.    160,   citing 

manv  c^ses. 


18  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  13.    Distinction   between    Servants    and   Independent 
Contractors. 

We  have  already  noted  the  distinction  between  a  servant 
and  an  agent.  We  have  now  to  inquire  whether  one  who 
is  performing  operative  or  ministerial  acts  for  another  is 
in  the  conventional  relation  of  a  servant  to  the  master  or 
whether  he  is  an  independent  contractor.  There  is  a  wide 
difference  between  a  servant  and  an  independent  contractor. 
It  may  be  stated  generally  that  if  a  person  contracts  with 
another  who  is  engaged  in  an  independent  employment, 
for  the  doing  of  certain  work  by  the  latter,  but  does  not 
personally  interfere  or  give  directions  respecting  the  man- 
ner of  the  work,  the  relationship  of  master  and  servant 
does  not  exist,  but  the  party  employed  is  an  independent 
contractor.  "When  a  person  desires  a  particular  act  done 
he  may  either  hire  a  workman  to  do  it,  retaining  control 
of  the  servant  and  directing  his  work,  or  he  may  let  the 
job  by  contract  simply  stipulating  that  it  shall  be  done  in 
accordance  with  certain  specifications,  but  retaining  no  con- 
trol over  the  contractor  or  his  methods  of  work.  In  the 
first  case  the  workman  is  a  servant ;  in  the  second  he  is  an 
independent  contractor."  ^^  Bramwell,  L.  J.,  remarked  in 
a  letter  to  Sir  H.  Jackson  regarding  the  English  Employers' 
Liability  Act  of  1880:  "The  relation  of  master  and  servant 
exists  where  the  master  can  not  only  order  the  w^ork,  but 
how  it  shall  be  done.  When  the  person  to  do  the  work 
may  do  it  as  he  pleases,  then  such  person  is  not  a  servant." 

A  recent  Minnesota  case  recites :  "  The  terms  'indepen- 
dent contractor'  and  'servant,'  as  applied  to  the  subject  in 
hand,  are  somewhat  unsatisfactory,  but  are  used  for  want 
of  better  ones.  The  word  'servant'  as  used  in  this  connec- 
tion is  applicable  to  any  relation  in  which,  with  reference 
to  the  matter  out  of  which  the  alleged  wrong  has  sprung, 

"Huff.  Agcy.,  2d  cd.,  Sec.  218. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  19 

the  person  sought  to  be  charged  had  the  right  under  the 
contract  of  employment  to  control,  in  the  given  particular 
complained  of,  the  action  of  the  person  doing  the  alleged 
wrong.  In  every  case  the  decisive  question  in  determining 
whether  the  doctrine  of  respondeat  superior  applies  is,  had 
the  defendant  the  right  to  control  in  the  given  particular 
the  conduct  of  the  person  doing  the  wrong.  If  he  had,  he 
is  liable.  On  this  question  the  contract  under  which  the 
work  was  done  must  speak  conclusively — in  every  case 
reference  being  had,  of  course,  to  surrounding  circum- 
stances. If  defendant  had  such  control,  the  mere  fact  that 
the  agent  who  did  the  injury  carried  on  a  separate  and  in- 
dependent employment  will  not  absolve  his  principal  from 
liability.  If  this  control  existed,  it  makes  no  difference 
whether  the  person  doing  the  injury  was  the  'servant'  of 
the  defendant  in  the  popular  sense  of  that  word,  or  a 
person  merely  employed  to  do  a  specihed  job  or  piece  of 
work."  ^^     "The  true  distinction  between  cases  of  master 


03  r. , 


Rait  V.  New  England,  etc.,  "The  relation  of  master  and  serv- 
Co.  (1896),  66  Minn.  76;  68  N.  ant  is  often  confused  with  some 
W.  729.  An  early  leading  Mas-  other  relation.  The  mere  fact 
sachusetts  case  decides  that  'if  that  some  person  renders  some 
the  person  employed  to  dp  the  service  to  another  for  compensa- 
work  carries  on  an  independent  tion,  expressed  or  implied,  does 
employment,  and  acts  in  pursu-  not  necessarily  create  the  legal 
ance  of  a  contract  with  his  em-  relation  of  master  and  servant, 
ployer,  by  which  he  has  agreed  to  There  are  many  kinds  of  employ- 
do  the  work  on  certain  specified  ment  which  are  peculiar  and 
terms  in  a  particular  manner  and  special,  where  one  person  may 
for  a  stipulated  price,  then  the  render  service  to  another  without 
employer  is  not  liable.  The  rela-  becoming  his  servant  in  the  legal 
tion  of  master  and  servant  does  sense.  A  servant  is  one  who  is 
not  subsist  between  the  parties.  employed  to  render  personal  serv- 
bul  only  that  of  contractor  and  ices  to  his  employer  otherwise 
contractee."  Bigelow,  C.  J.,  in  than  in  the  pursuit  of  an  inde- 
Brackett  v.  LuBKE  (1862),  4  pendent  calling.  The  truckman 
Allen.  138;  81  Amer.  Dec.  694.  who  transports  the  traveler's  bag- 
In  another  leading  case  it  is  said :  gage  or  the  merchant's  goods  to 


20 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


and  servant  and  cases  of  employer  and  independent  con- 
tractor seems  to  be  this,  that  when  the  person  actually  doing 
the  work  does  something  for  which  he  would  himself  be 
liable,  the  master  is,  whilst  the  employer  is  not,  liable  for 
what  is  conveniently  called  'collateral  negligence,'  meaning 
thereby  negligence  other  than  the  imperfect  or  improper 
performance  of  the  work  which  the  contractor  is  employed 
to  do.''  ^^  "In  all  ordinary  transactions  the  existence  of  the 
relation  of  contractor  as  between  two  given  persons  ex- 
cludes that  of  principal  and  agent,  and  master  and  servant. 
But  there  is  not  necessarily  such  a  repugnance  between 
them  that  they  can  not  exist  together.  .  .  .  Hence,  the 
fact  that  an  employee  was  a  servant  as  respects  one  part 
of  the  functions  discharged  by  him  will  not  involve  the 
consequences  that  the  employer  must  answer  for  injuries 
caused  by  an  act  of  negligence,  while  he  was  engaged  in 


the  railroad  station,  though  hired 
and   paid    for  the   service   by   the 
owner    of    the    baggage    or    the 
goods,   is   not   the   servant  of  the 
person    who    thus    employs    him. 
He    is    exercising   an   independent 
and    quasi-public    employment    in 
the   nature   of   a   common   carrier 
and    his   customers,    whether    few 
or    many,    are    not    generally    re- 
sponsible    for     his     negligent    or 
wrongful  acts,  as  they  may  be  for 
those    of    other    persons    in    their 
regular    employment    as    servants. 
A    contract,    whether    express    or 
implied,  under  which  such  special 
jobs    are    done    or    such    special 
services   rendered,   is  not  that  of 
master    and     servant    within    the 
law    of    negligence."      Prevailing 
opinion    in    Murray    v.    Dwight 
(1900).  161   N.  Y.  301;  55  N.  E. 
901;  48  L.  R.  A.  673. 


"Hardaker  v.  Idle  District 
Council,  etc.  (1891),  1  Q.  B.  352, 
per  Lord  Justice  Rigby.  "Lia- 
bility for  the  collateral  negligence 
depends  entirely  upon  the  exist- 
ence of  the  relation  of  master 
and  servant  between  the  employer 
and  the  person  actually  in  de- 
fault." Blackburn,  J.,  in  Mersey, 
etc.,  Co.  v.  Gibbs  (1864),  L.  R.,  1 
H.  L.  93.  So,  also,  generally,  if 
A.  places  his  servants  on  B.'s 
premises  pursuant  to  an  arrange- 
ment by  which  B.  is  to  have  the 
right  to  direct  the  acts  or  control 
the  conduct  of  the  servant,  B. 
must  respond  for  the  torts  of 
the  servant  while  thus  engaged. 
Brady  v.  Chicago,  etc.,  Railroad 
(1902),  114  Fed.  100;  52  C.  C.  A. 
48;  57  L.  R.  A.  712;  Atwood  v. 
Chicago,  etc.,  Railroad  (1896), 
72  Fed.  447.     Ante,  Sec.  7. 


WPIO    .VRE    INDEPENDENT    CONTRACTORS. 


21 


work   which    he   had   undertaken   as   an    independent   con- 
tractor." -'^ 

Sec.  14.     Distinction    between    Agents     and    Independent 
Contractors. 

It  has  been  said  that  "the  difference  between  an  agent 
and  an  independent  contractor  is,  that  the  agent  undertakes 
to  act  in  the  matter  of  the  agency,  subject  to  the  directions 
and  control  of  his  employer,  whereas  an  independent  con- 
tractor does  not,  but  contracts  to  perform  certain  specified 
work  or  produce  a  certain  specified  result,  the  manner  and 
means  of  performance  or  production  being  left  to  his  dis- 
cretion, except  so  far  as  they  are  specified  by  the  con- 
tract." ''*^     The  non-liability  of  an  employer  for  the  torts 


'^  Note  to  Richmond  v.  Sitter- 
ding  (1903,  Va.),  65  L.  R.  A. 
449,  citing  Detroit  v.  Cory 
(1861),  9  Mich.  165;  80  Amer. 
Dec.  78.  One  employed  to  do 
editorial  work,  agreeing  to  devote 
his  whole  time  during  his  em- 
ployer's regular  office  hours  to 
work  for  compensation  based  on 
the  number  of  pages  of  his  contri- 
bution accepted  by  the  employer, 
who  furnished  him  all  materials 
and  all  the  assistance  for  per- 
forming his  work,  and  who  was 
to  be  the  sole  owner  of  the  copy- 
rights thereon,  although  not  a 
servant,  in  the  ordinary  sense  of 
the  term,  was  not  an  independent 
contractor.  Edw.  Thompson  Co.  v. 
Clark  (1904),  109  N.  Y.  Supp. 
700.  In  Berg  v.  Bousfield  (1896), 
65  Minn.  355.  16  Amer.  Neg.  Cas. 
188.  the  rule  was  applied  that 
where  one  who  performs  work 
for  another  represents  the  will  of 
such  other  not  only  as  to  the  re- 


sult but  also  as  to  the  means  by 
which  it  is  accomplished,  he  is 
not  an  independent  contractor  l)ut 
the  agent  of  that  other  who  is 
responsible  for  his  acts  and  omis- 
sions within  the  scope  of  his  au- 
thorit}-.  Defendant  railroad  com- 
pany shipped  coal  in  cars  to  its 
agent  G.,  who  in  turn  contracted 
with  S.  to  unload  the  cars  at  so 
much  per  car,  S.  not  being  con- 
trolled in  unloading.  In  unload- 
ing a  car,  S.  threw  a  heavy 
plank  from  the  top  of  the  car  and 
struck  plaintiff,  passing  by.  Held  : 
That  S.  was  a  servant  acting 
within  the  course  of  his  employ- 
ment and  not  an  independent  con- 
tractor. Holmes  v.  Tennessee, 
etc.,  Co.  (1897).  49  La.  Ann. 
1465;  22  So.  401;  1  Amer.  Neg. 
Rep.  174.  citing  Shea  v.  Reems 
(1884).  36  La.  Ann.  969. 

"Bowstead,    Law    of    Agcy.,   3, 
note. 


22 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


of  an  independent  contractor  was  held  in  an  early  English 
case  to  constitute  "an  exception  to  the  generality  of  the 
rule  qui  facit  per  alium  facit  per  se,  made  necessary  by 
public  convenience  and  general  usage,  and  when  the  reason 
of  the  rule  does  not  so  fully  apply."  ^'^  "Assuming  that  the 
right  of  control  be  unimpeachable,  it  is  clear  that  the  exer- 
cise or  non-exercise  of  that  right  by  the  employer  is  not 
an  available  element  for  the  purposes  of  differentiating 
where  it  is  a  question  of  distinguishing  between  agents  and 
independent  contractors."  "**     The  allegation  that  "G.  and 


''Wiswall  V.  Brinson  (1849), 
32  N.  C.  (10  Ired.  L.)  554.  Com- 
pare Quarman  v.  Burnett  (1840), 
6  Mees.  &  W.  509;  4  Am.  Neg. 
Rep.  437,  n. 

"■■^Note  to  Richmond  v.  Sitter- 
ding  (1903,  Va.),  in  65  L.  R.  A., 
at  p.  448,  by  Mr.  C.  B.  Labatt,  in 
which  the  learned  writer  says 
further:  "In  the  absence  of  any 
judicial  discussion  bearing  direct- 
ly upon  the  problem  thus  indi- 
cated (i.  e.,  the  difference  between 
agents  and  independent  con- 
tractors), it  is  with  much  diffi- 
dence that  the  writer  ventures  to 
suggest  that  these  two  classes  of 
employees  can  be  discriminated, 
if  at  all,  only  by  considering  their 
position  with  reference  to  the 
character  of  the  work  which  is 
ordinarily  intrusted  to  them.  An 
agent  is  ordinarily  appointed  to 
represent  his  principal  in  some 
transaction  or  transactions  ari-sing 
out  of  business,  trade  or  com- 
merce.— Not  infrequently  the  dis- 
charge of  such  functions  by  an 
agent  may  also  involve  the 
performance  of  a  considerable 
amount  of  manual  labor  by  him- 


self or  others,  in  dealing  with 
various  material  substances ;  but 
such  operations  are  merely  an  in- 
cidental result  of  the  execution  of 
his  agreement.  Such  situations 
may,  and  often  do,  occur  in  con- 
nection with  the  transactions  of 
auctioneers  and  factors. — On  the 
other  hand,  it  is  clear  that  opera- 
tions of  this  character  have 
formed  the  subject  of  the  under- 
taking in  the  great  majority  of 
the  cases  in  which  the  rights  and 
liabiHties  arising  out  of  the  em- 
plo3aTient  of  independent  contrac- 
tors have  been  discussed.  If, 
therefore,  the  terms  'agent'  and 
'independent  contractor'  are  to  be 
considered  as  having  relation  to 
two  entirely  separate  regions  of 
fact,  this  circumstance  may  pos- 
sibly be  taken  as  the  distinctive 
factor  which  in  any  given  case 
will  determine  the  class  to  which 
the  employee  should  be  assigned. 
— So  far  as  civil  actions  are  con- 
cerned, there  would  seem  to  be 
no  logical  objection  to  taking,  a?, 
the  element  which  fixes  the  char- 
acter of  the  emplo3'ment,  that 
aspect    of    an    independent    con- 


WHO    ARK   INDEPENDENT    CONTRACTORS. 


23 


McK.  were  employees  of,  or  contractors  for,  the  defendant" 
did  not  necessarily  mean  that  they  were  independent  con- 
tractors. If  they  were  contractors  for  the  defendant,  their 
work  may  have  been  such  as  to  constitute  them  agents  of 
the  defendant.  ^^ 

Sec.  15.    Doctrine  of  Respondeat  Superior. 

The  liability  of  the  constituent  for  the  misfeasances, 
negligences  and  torts  of  his  agents  and  servants,  discussed 
in  a  previous  section,  extends  not  only  to  the  injuries  and 
wrongs  of  the  representative  who  is  immediately  employed 
by  the  constituent  in  a  particular  business,  but  also  to  the 
injuries  and  wrongs  by  others  who  are  employed  by  that 
representative  under  him,  or  with  whom  he  contracts  for 
the  performance  of  the  business;  for  the  liability  reaches 
through  all  the  stages  of  the  service  so  long  as  the  relation 
of  master  and  servant  continues.  ^^     Whether  the  relation 


tractor's  position  which  exhibits 
him  as  a  substitute  or  deputy  of 
the  contractce  (employer)  in  re- 
spect to  the  performance  of  the 
stipulated  work. — In  this  point  of 
view  an  independent  contractor 
will  be  simply  an  agent  whose 
employment  does  not  carry  with 
it  certain  incidents  by  which  it  is 
ordinarily  attended,  and  he  may 
be  conceived  as  being  distin- 
guished from  other  kinds  of 
agents  by  the  diagnostic  mark 
which  is  referred  to  in  the  last 
paragraph. — It  is  impossible,  how- 
ever, to  affirm  that  the  very  vague 
criterion  thus  suggested  for  pur- 
poses of  differentiating  is  one  of 
universal  applicability,  or  that  it 
is  habitually  recognized  or  taken 
into  account  by  the  courts.  In- 
deed,   cases    are    not    wanting    in 


which  employers  have  been  held 
liable  on  the  specific  ground  that 
the  tort-feasor  was  a  servant,  and 
not  an  independent  contractor, 
although,  so  far  as  can  be  seen, 
the  facts  involved  were  such  that 
this  conclusion  might  equally  well 
have  been  reached  through  the 
application  of  the  principles  of  the 
law  of  agency." 

"*  Bessemer,  etc.,  Co.  v.  Do.\k 
(1907),  151  Ala.  670;  44  So.  627; 
12  L.  R.  A.  (N.  S.),  389,  391. 

""  Story  Agcy.,  9th  ed..  Sec.  454, 
citing  Reeves  v.  State  Bank,  8 
Ohio  St.  476;  Bush  v.  Steinman 
(1799),  1  Bos.  &  P.  409.  with 
exhaustive  note ;  Nicholson  v. 
Mounsey.  15  East,  384;  Weyland 
V.  Elkin?.  Holt's  N.  P.  227;  1 
Starkie.  272. 


24 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


between  an  employer  and  employee  is  that  of  master  and 
servant  or  not  is,  as  already  shown,  a  matter  of  considerable 
importance.  The  importance  is  not  so  much,  however, 
in  tracing  the  distinction  between  a  servant  and  an  agent 
as  it  is  in  ascertaining  the  distinction  between  a  servant 
and  a  contractor.  The  doctrine  of  respondeat  superior 
renders  the  master  liable  for  those  acts  of  his  servants 
which  have  been  committed  in  the  course  of  the  service  he 
was  employed  to  render;  and  the  same  liability  obtains  on 
the  part  of  the  principal  for  the  acts  of  his  agent  done  in 
the  line  of  such  agent's  employment.  But  a  contractor, 
being  neither  a' servant  nor  an  agent,  sustains  no  such  rela- 
tion to  his  employer  as  will  render  the  latter  liable  for  his 
acts,  whether  they  be  performed  in  or  out  of  the  scope  of 
the  employment.  The  rule  respondeat  superior  has  no  ap- 
plication to  an  independent  contractor  who  is  employed, 
for  instance,  to  do  a  piece  of  work  for  the  employer,  during 
the  performance  of  which  a  third  person  is  injured.  ^^  The 
maxim  of  respondeat  superior  "is  only  applicable  in  cases 
where  the  party  sought  to  be  charged  stands  in  the  rela- 
tion of  superior  to  the  person  whose  wrongful  act  is  the 
ground  of  complaint."  *'^ 


•^  Reinhard  Agcy.,  Sec.  474, 
citing  Robinson  v.  Webb  (1875), 
11  Bush  (Ky.),  464;  Bailey  v. 
Troy,  etc.,  Railroad  (1883),  57 
Vt.  252;  52  Amer.  Rep.  129. 
Under  either  theory  {i.  e.,  of 
liabiUty  or  exemption),  the  inter- 
mediate agents  of  a  municipal 
corporation  who  make  the  con- 
tract or  direct  the  work  to  be 
done,  will  not  become  liable  for 
any  negligence  or  other  wrong  by 
the  contractor  or  his  employees 
in  executing  it  on  the  ground  of 
respondeat  superior,  the  work  not 


being  wrongful  per  se.  In  such 
case,  if  there  is  any  liability  on 
the  part  of  a  superior  of  the  im- 
mediate actor,  it  is  the  liability 
of  the  municipal  corporation. 
McKenna  v.  Kimball  (1888),  145 
Mass.  555;  14  N.  E.  789. 

"'Blackwell  v.  Wiswall  (1855), 
24Barb.  (N.  Y.).355.  Cf.  Bibb  v. 
Norfolk,  etc.,  Railroad  (1891), 
87  Va.  711;  14  S.  E.  163;  47  Am. 
&  Eng.  Rail.  Cas.  651 ;  Cincin- 
nati V.  Stone  (1855),  5  Ohio  St. 
38;  DuPratt  v.  Lick  (1869),  38 
Cal.  691 ;   Hilsdorf  v.   St.   Louis 


WHO  ABE  INDEPENDENT  CONTRACTORS. 


25 


On  the  other  hand  it  is  obvious  that  the  control  stipulated 
for  in  the  contract  may  be  so  absolute  as  to  make  the  dis- 
cretion of  the  contractor  wholly  subordinate  to  that  of  the 
employer,  or  to  that  of  his  engineer,  architect,  or  other 
superintendent;  in  which  case  the  relation  of  master  and 
servant  is  deemed  to  arise  and  the  maxim  of  respondeat 
superior   applies."^      The   early   case   of   Bush   v.    Stein- 


(1869),  45  AIo.  94;  100  Amer. 
Dec.  352;  Deford  v.  State  (1868), 
30  Md.  179.  'The  modern  deci- 
sions have  placed  two  limitations 
upon  the  liability  of  the  master 
which  deserve  notice.  The  fel- 
low-servant doctrine  relieves  the 
master  from  liability  where  the 
person  injured  is  a  fellow-servant 
of  the  tort-feasor.  Some  diffi- 
culty has  been  encountered  in 
finding  the  proper  basis  for  the 
rule. — The  other  limitation  on 
the  master's  liability  is  found  in 
those  cases  where  an  independent 
contractor  is  employed.  Here  the 
person  who  lets  the  contract  is 
not  liable  for  the  torts  of  the 
servants  employed  by  the  con- 
tractor. The  reason  is  obvious. 
The  conductor,  or  one  who  lets 
the  contract,  has  no  control  over 
employees  of  the  contractor,  and 
hence  is  not  treated  as  their 
master.  He  is  only  concerned 
with  the  finished  product  of  their 
labor,  and  the  contractor,  both  in 
fact  and  in  theory,  is  the  master 
of  those  whom  he  employs.  Sim- 
ple as  this  appears,  the  principle 
in  question  was  violated  in  prob- 
ably the  first  case  presenting  facts 
of  this  kind."  2  Street  Legal 
Liab..  470,  citing  Bush  v.  Stein- 
MAx   (1799).  1  B.  &  P.  404.     "It 


is  a  doctrine  as  old  as  the  Bible 
itself,  and  the  common  law  of  the 
land  follows  it,  that  a  man  cannot 
serve  two  masters  at  the  same 
time;  he  will  obey  the  one  and 
betraj'  the  other.  He  cannot  be 
subject  to  two  controlling  forces 
which  may  at  any  time  be  di- 
vergent. So  the  English  courts, 
which  are  generally  apt  to  hit  the 
blot  in  the  application  of  funda- 
mental rules,  hold  that  there  can 
be  no  application  of  the  doctrine 
of  respondeat  superior  in  its  ap- 
plication to  two  distinct  masters ; 
that  the  servant  must  be  subject 
to  the  jurisdiction  of  one  master 
at  one  time."  Philips,  J.,  in  At- 
wood  v.  Chicago,  etc..  Railroad 
(1896),  72  Fed.  447,  454. 

■«  Newton  v.  Ellis  (1885),  5  El. 
&  Bl.  115;  Blake  v.  Thirst  (1863), 
2  Hurl.  &  C.  20.  Cf.  Burgess 
V.  Gray  (1845),  1  C.  B.  578; 
Pearson  v.  Co.x  (1877),  2  C.  P. 
Div.  369.  "It  follows,  therefore, 
that  the  mere  fact  that  a  person 
exercises  generally  an  independent 
employment,  in  which  he  is 
skilled,  does  not  exclude  the  con- 
clusion that  he  may  be  tlie  serv- 
ant of  one  who  hires  him  to  do 
a  particular  job."  Thomps.  Neg., 
Sec.  638. 


26 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


MAN,  to  which  reference  will,  from  time  to  time,  be  made, 
was  soon  discredited  and  the  law  is  now  well  settled  that 
the  man  who  has  immediate  control  or  the  right  of  control 
over  the  work  is  the  master,  and  will  be  governed  by  the  rule 
of  respondeat  superior. ^'^ 

Sec.  16.     Independent  Contractor  Defined. 

"\\^hen  the  person  employed  is  in  the  exercise  of  a  dis- 
tinct and  independent  employment  and  not  under  the  imme- 
diate supervision  and  control  of  the  employer,  the  relation 
of  master  and  servant  does  not  exist  and  the  liability  of  a 
master  for  his  servant  does  not  exist."  *^^  An  independent 
contractor,  within  the  meaning  used  in  this  work,  has  been 
defined  as  "one  who  renders  service  in  the  course  of  an 
occupation,  representing  the  will  of  his  employer  only  as 
to  the  result  of  his  work,  and  not  as  to  the  means  by  which 
it  is  accomplished."  ^^  "We  recognize  the  rule  that  where 
one  person  contracts  with  another  to  do  and  perform  cer- 
tain work  or  labor,  and  the  person  for  whom  the  work  is 
done  has  no  control  or  management  thereof,  the  one  who 
undertakes  the  work  becomes  an  independent  contractor."  ^'^ 
An  independent  contractor  has  also  been  defined  to  be  "one 
who,  exercising  an  independent  employment,  contracts  to 


•»Cf.  2  Street  Legal  Liab.,  472, 
citing  Reedie  v.  London,  etc.. 
Railroad  (1849).  4  Exch.  255;  6 
Eng.  Rail.  &  Corp.  Cas.  184;  4 
Am.  Neg.  Rep.  438.  n;  9  Id..  122, 
n;  Milliard  v.  Richardson  (1855), 
3  Gray  (Mass.),  349;  63  Amer. 
Dec.  743;  Pendleton  v.  Green- 
lagh  (1875),  1  Q.  B.  Div.  36. 

«=  Linton  v.  Smith  (1857),  8 
Gray  (Mass.),  147.  See,  generally, 
ante.  Sec.  13,  et  seq. 

"Harrison  v.  Collins   (1878), 


86  Pa.  St.  153 ;  27  Amer.  Rep.  699, 
quoted  and  adopted  in  Thompson 
on  Negligence,  Sec.  622,  and  Tif- 
fany on  Dom.  Rels.,  p.  508.  "An 
independent  contractor  is  one 
who.  exercising  his  own  volition 
and  judgment  as  to  means  and 
methods,  undertakes  to  achieve  a 
definite  result."  Barrows  on 
Neg.,  Sec.  59,  black  letter  text. 

^' Wiley,  P.  J.,  in  Falender  v. 
Blackwell  (1906),  39  Ind.  App. 
121,  126;  79  N.  E.  393. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


27 


do  a  piece  of  work  according  to  his  own  methods  and 
without  being  subject  to  the  control  of  his  employer,  except 
as  to  the  result  of  his  work."  ^'^ 

In  a  recent  New  York  case  it  is  said  that  "where  a  person 
is  employed  to  perform  work  which  requires  the  exercise 
of  skill  and  judgment,  and  the  execution  of  it  is  left  entirely 
to  his  discretion,  with  no  restriction  as  to  its  exercise,  and 
no  limitation  as  to  the  authority  conferred,  and  the  compen- 
sation is  dependent  on  the  value  of  the  services,  such  a 
person  does  not  occupy  the  relation  of  a  servant  under  the 
control  of  a  master  but  is  an  independent  contractor  and  the 
owner  is  not  liable  for  his  acts  or  the  acts  of  his  workmen, 
who  are  negligent  and  cause  injury  to  another."  "^     When 


""  Lurtoii,  J.,  in  Powell  v.  Con- 
struction Co.  (1890),  88  Tenn. 
692;  13  S.  W.  691;  17  Amer.  St. 
Rep.  925.  This  definition  is 
quoted  in  Humpton  v.  Unter- 
kircher  (1896),  97  Iowa,  509;  66 
N.  W.  776;  14  Am.  Neg.  Cas. 
592,  n.,  and  declared  to  be  the 
best  found  bj-  the  court ;  and  it 
is  also  quoted  with  approval  in 
Goon  V.  Johnson  (1907).  38  Colo. 
440;  88  Pac.  439;  8  L.  R.  A.  (N. 
S.),  900.  "One  is  an  independent 
contractor  who,  for  what  the  job 
is  reasonably  worth,  undertakes 
to  overhaul  the  awnings  on  an- 
other's building,  the  latter  ex- 
pressing no  direction,  judgment 
or  discretion  in  the  matter." 
McHarge  v.  Newcomer  (1907), 
117  Tenn.  595;  100  S.  W.  700; 
9  L.  R.  A.  (N.  S.).  298,  citing 
Powell  v.  Virginia,  etc..  Con- 
struction Co.,  supra;  Knoxville, 
etc.,  Co.  v.  Dodson.  7  Lea  (Tenn.), 
367;  Bennett  v.  Truebody  (1885), 
66  Cal.  509;  6  Pac.  329;  56  Amer. 
Rep.  117;  13  Am.  Neg.  Cas.  517,  n. 


An  independent  contractor  is 
one  who  undertakes  to  produce  a 
given  result,  but  so  that,  in  the 
actual  execution  of  the  work,  he 
is  not  under  the  order  or  control 
of  the  person  for  whom  he  does 
it  and  may  use  his  own  dis- 
cretion in  things  not  specified. 
Gay  V.  Roanoke,  etc.,  Co.  (1908, 
N.  C),  62  S.  E.  436.  An  inde- 
pendent contractor  is  one  who  in 
rendering  services,  exercises  an 
independent  employment  or  occu- 
pation and  represents  his  em- 
ployer only  as  to  the  results  of 
the  work  and  not  as  to  the  means 
by  which  it  is  to  be  accomplished. 
Texas,  etc..  R.  v.  Parsons  (1908, 
Tex.  Civ.  App.),  109  S.  W.  240. 
Cf.  Drennon  v.  Patton.  etc.,  Co. 
(1908,  Tex.  Civ.  App.),  109  S.  W. 
218. 

"Kueckel  v.  Ryder  (1900),  170 
N.  Y.  562;  62  N.  E.  1096.  affirm- 
ing 66  N.  Y.  Supp.  522.  An  in- 
dependent contractor  is  one  who 
carries    on    an    independent    busi- 


28 


INDEPENDENT    CONTRACTORS    AND    THEIR    LLVBILITY. 


one  contracts  to  do  and  deliver  certain  specific  work  which 
is  not  unlawful,  and  the  manner  of  the  doing  of  which,  in- 
cluding the  employment,  payment  and  control  of  the  labor 
is  left  entirely  to  him,  he  is  an  independent  contractor  for 
whose  acts  and  omissions,  in  the  execution  of  such  contract, 
the  other  contracting  party  is  not  liable,  since  the  doctrine 
of  respondeat  superior  has  no  application  where  the  em- 
ployee represents  the  employer  only  as  to  the  lawful  purpose 
of  the  contract,  but  does  not  represent  him  in  the  means  by 
which  that  purpose  is  to  be  accomplished.  '"     Independent 


ness,  and  in  the  line  of  this 
business  is  employed  to  perform 
a  piece  of  work,  and  in  doing  it 
determines  for  himself  in  what 
manner  the  work  shall  be  done, 
and  represents  the  will  of  his 
employer  only  as  to  the  result  of 
the  work.  Zimmerman  v.  Bauer 
(1894),  11  Ind.  App.  607;  39  N. 
E.  299;  Keys  v.  Second  Baptist 
Church  (1904),  99  Me.  308;  59 
Atl.  446;  17  Am.  Neg.  Rep.  526. 
Cf.  Bjornsen  v.  Sacone  (1899), 
88  Ills.  App.  6;  Knowlton  v. 
Hoit  (1891),  67  N.  H.  155;  30  Atl. 
346. 

A  Missouri  case  declares:  "We 
find  no  countenance  for  the 
proposition  that  a  person  not 
especially  qualified  for  a  par- 
ticular service,  but  ready  to  un- 
dertake any  job  which  may  be 
offered  to  him  that  he  thinks 
himself  able  to  perform,  becomes, 
when  hired  for  some  job,  an  in- 
dependent contractor  simply  be- 
cause the  employer  relinquishes 
control  over  the  work  and  trusts 
to  the  employee's  discretion.  It 
looks  like  the  employee  must  have 
a  calling  in  which  it  is  fair  to 
presume    he   has    developed    skill. 


before  he  will  be  regarded  other- 
wise than  as   a  servant.     We  do 
not  say  he  must  have  a  trade  or 
profession,  be  a  skilled  mechanic, 
doctor    or    lawyer;    but    he    must 
hold    himself    out    as    having    an 
occupation   with    which  he  is    fa- 
miliar."  MuUich  V.  Brocker  (1905), 
119  Mo.  App.  332,  97  S.  W.  551, 
in   which   an   employee  having   no 
regular   vocation  agreed  to  break 
in    a    pony,     for    a    stated    sum, 
taking  it  out  in  the  morning  and 
returning    it    to     the     employer's 
barn  in  the  evening,  was  held  not 
to   be   an    independent  contractor. 
™Robideaux  v.   Hebert    (1907), 
118  La.   1089;   43   So.  887;   12  L. 
R.  A.   (N.  S.),  632,  head  note  by 
Monroe,     J.,     citing     Peyton     v. 
Richards   (1856),  11  La.  Ann.  63; 
Gallagher    v.    Southwestern,    etc., 
Co.     (1876),    28    La.    Ann.    943; 
Riley    v.    State   Line,    etc.,    Co. 
(1877),  29  La.  Ann.  791;  29  Am. 
Rep.     .349;     Sweeny     v.     Murphy 
(1880),  32  La.  Ann.  628;  MofiFatt 
v.  Koch    (1901),  106  La.  371;  31 
So.     40;      Casement     v.      Brown 
(1893),  148  U.  S.  615;   16  Amer. 
&  Eng.  Enc.  of  Law,  2d  ed.,  187. 


WHO    ABE    INDEPENDENT    CONTRACTORS. 


29 


contractors  are  sometimes  spoken  of  as  persons  who  are 
exercising  or  carrying  on  an  "independent  employment,"  '^^ 
or  an  "independent  business,"  '^  or  as  being  "in  the  exer- 
cise of  an  independent  and  distinct  employment."  "''^  Sev- 
eral early  Scotch  cases  in  which  the  employer  was  held 
liable  seem  to  be  inconsistent  with  the  general  trend  of 
American  and  English  authorities.^'* 


'^Pickens  v.  Diecker  (1871), 
21  Ohio  St.,  212 ;  8  Arner.  Rep.  55. 

■'Allen  v.  Hayw.'>lRd  (1845), 
7  Q.  B.  960;  4  Eng.  Rail.  &  Corp. 
Cas.,  104. 

"Linton  v.  Smith  (1857),  8 
Gray  (Mass.),  147.  "An  analysis 
of  the  elements  embraced  in  the 
statements  above  quoted  indicates 
that  the  judical  conception  of 
an  independent  contractor  is  sim- 
ply that  of  a  person  who,  being 
in  the  exercise  of  a  distinct  and 
recognized  trade,  craft  or  busi- 
ness, undertakes  to  do  a  certain 
work,  without  submitting  himself 
to  the  control  of  the  employer  in 
respect  of  the  details  of  that 
work.  Considered  from  one  point 
of  view,  the  situation  contem- 
plated when  such  a  person  is 
engaged  implies  that  the  em- 
ployer has  nothing  to  do  in 
respect  to  the  work,  except  to  see 
that  it  is  done  according  to  the 
terms  of  the  contract ;  or  that  he 
has  merely  a  right  to  see  that 
the  contract  is  performed  in  pur- 
suance of  its  terms,  conditions 
and  specifications.  Considered 
from  another  point  of  view,  that 
situation  implies  that  he  is  to 
have  the  independent  use  of  his 
own    skill,    judgment,    means    and 


servants  in  the  execution  of  the 
work,  or  that  he  is  to  have  the 
exclusive  direction  and  control  of 
the  manner  in  w'hich  the  work  is 
to  be  done,  or  that  he  is  to  have 
full  control  of  the  work  and 
workmen,  or  that  the  execution 
of  the  work  is  to  be  left  entirely 
to  his  discretion,  or  that  he  is  to 
be  free  to  exercise  his  own  judg- 
ment and  discretion  as  to  the 
means  and  assistants  that  he  may 
think  proper  to  employ  about  the 
work,  or  that  he  is  to  be  left  en- 
tirely free  to  do  the  work  as  he 
pleases,  or  that  the  work  is  to 
be  done  according  to  his  own 
methods,  or  that  he  is  to  procure 
labor  and  materials  in  his  own 
way,  provided  they  are  such  as 
the  contract  demands,  and  use 
such  machinery  and  appliances 
as  he  deems  proper,  provided 
they  do  not  unnecessarily  injure 
the  subject-matter  of  the  con- 
tract or  interfere  with  work  done 
by  others."  Note  to  Richmond 
V.  Sitterding  (1903.  Va.),  in  65 
L.    R.    A.   447. 

"*  Rankin  v.  Dixon  (1847),  9 
Scotch  Sess.  Cas.,  2d.  series,  1048; 
Nisbett  V.  Dixon  (1852),  14  Id., 
973;  Cleghorn  v.  Taylor  (1856), 
18  Id..  664. 


30  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILFrY. 

Sec.  17.    Relation  of  Sub-contractor. 

A  sub-contractor  with  whom  a  railway  construction  com- 
pany contracts  for  the  construction  of  a  part  of  its  road, 
as  determined  by  the  construction  company's  engineer  as 
to  distance,  such  sub-contractor  to  be  furnished  by  the  con- 
struction company  with  a  locomotive,  train  and  crew,  is 
an  independent  contractor  for  whose  neghgence  in  running 
the  train  the  construction  company  was  held  not  liable.  "'^ 
In  a  New  York  case  it  was  laid  down  that  even  if  it  should 
be  regarded  as  a  legitimate  inference  from  the  testimony, 
that  the  principal  contractor  was  acting  as  the  employer's 
agent  in  negotiating  certain  sub-contracts,  including  that 
which  was  made  with  the  one  whose  negligence  caused  the 
injury,  the  mere  fact  that  the  principal  contractor  undertook 
such  functions  would  not  enlarge  the  employer's  liability 
for  the  sub-contractor's  negligence  since  it  also  appeared 
that  in  making  the  sub-contracts,  the  employer  dealt  di- 
rectly with  the  sub-contractors  themselves. 


7(3 


Seo.  18.     Tests  of  Eelation  of  Independent  Contractor, 

The  test  generally  applied  in  answering  the  question, 
Who  are  independent  contractors?  is  "independence  of  con- 
trol in  employing  workmen  and  in  selecting  the  means  of 
doing  the  work."  "'"'  "The  proper  criterion  by  which  to  de- 
termine whether  in  a  given  case  the  relation  of  master  and 
servant  exists  is  found  in  the  right  of  the  master  to  order 
and  control  the  other  in  the  performance  of  the  work.     A 

'"Powell     v.      Virginia,      etc.,  "  Burd.     Torts,     p.     133,     citing 

Construction     Co.      (1890),     88  Uppington  v.  City  of  New  York 

Tenn.    692;    13    S.    W.    691;    17  (1901),  165  N.  Y.  222;  59  N.  E. 

Amer.    St.   Rep.   925.  91;  6  Am.   Neg.  Rep.  366;  53  L. 

'"Wolf  V.  American  Tract   So-  R.   A.   550;   Wright  v.   Big  Rap- 

ciety    (1898),   25    App.    Div.    (N.  ids  Co.   (1900).  124  Mich.  91;  82 

Y.),  93;  49  N.  Y.  Supp.  236.  N.  W.  829;  50  L.  R.  A.  495. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


31 


master  is  one  who  not  only  prescribes  to  the  workman  the 
end  of  his  work,  but  directs,  or  at  any  moment  may  direct, 
the  means  also;  or  as  it  has  been  put  'retained  the  power 
of  controlling  the  work.'  "''^  Again  it  is  said  the  true  test 
by  which  to  determine  whether  one  who  renders  service 
for  another,  does  so  as  a  contractor  or  as  a  servant,  is  to 
ascertain  whether  he  renders  service  in  the  course  of  an 
independent  occupation  in  which  he  represents  the  will  of 
his  employer  only  as  to  the  result  of  the  work  and  not  as  to 
the  means  by  which  it  is  accomplished.  '''•*  "The  accepted 
doctrine  is  that  in  cases  where  the  essential  object  of  an 
agreement  is  the  performance  of  work,  the  relation  of 
master  and  servant  will  not  be  predicated,  as  between  the 
party  for  whose  benefit  the  work  is  to  be  done  and  the  party 
who  is  to  do  the  work,  unless  the  former  has  retained  the 
right  to  exercise  control  over  the  latter  in  respect  to  the 
manner  in  which  the  work  is  to  be  executed.  .  .  .  This 
attribute  of  the  relation  (/.  e.,  control),  supplies  .  .  .  the 
single  and  universally  applicable  test  by  which  the  servants 
are  distinguished  from  independent  contractors."  ^'^  Of 
course,  the  proprietor  or  emplo}er  is  clearly  liable  where 
he  interferes  with  and  supervises  the  work  of  the  contractor 


'•^2  Street  Legal  Liab.  468,  cit- 
ing Pollock  on  Torts,  6th  ed.,  78; 
Sadler  v.  Henlock  (1855).  4  El. 
&  Bl.  570,  578.  But  the  retention 
by  an  employer,  of  general  super- 
vision of  the  work  to  be  per- 
formed by  an  independent  con- 
tractor will  not  change  the  con- 
tractor's relationship  to  the  work ; 
Miller  v.  Moran,  etc.,  Co.  (1905), 
39  Wash.  631;  81  Pac.  1089;  1  L. 
R.  A.  (N.  S.),  283. 

"Cunningham  v.  Interna- 
tional Railroad  Co.  (1879),  51 
Tex.    503;    32    Amer.    Rep.    632. 


"The  test  to  be  applied  is  whether 
the  employee  represents  his  em- 
ployer as  to  the  result  of  the 
work,  or  as  to  the  means.  If  the 
former,  he  is  to  be  regarded  as 
an  independent  cor.tractor ;  but  if 
the  latter,  merely  an  agent  or 
servant."  Parrott  v.  Chicago, 
etc..  Railroad  (1905),  127  Iowa 
419;  103  N.  W.  352. 

*"  Note  to  Richmond  v.  Sitter- 
ding  (1903).  101  Va.  354;  43  S. 
E.  562;  99  Amer.  St.  Rep.  879: 
16  Am.  Neg.  Rep.  609,  n.;  65  L. 
R.  A.  445.  at  p.  447. 


32 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


with  reference  to  its  methods  and  results.  ^^  But,  as  will 
appear  in  the  following  sections,  the  question  if  retaining 
control  or  retaining  the  right  to  control  is  not  the  sole  con- 
sideration in  determining  whether  the  relation  is  that  of 
master  and  servant  or  of  employer  and  independent 
contractor.  ^^ 


Sec.  19.     Retaining'  Control.  • 

In  the  leading  case  on  this  branch  of  the  subject  the 
trial  court  instructed  the  jury,  inter  alia:  "The  absolute 
test  is  not  the  exercise  of  power  of  control,  but  the  right 
to  exercise  power  of  control.  .  .  .  Although  the  de- 
fendants should  be  across  the  Atlantic,  nevertheless  .  .  . 
if  they  retained  the  power  to  control  and  direct  the  work, 
they  would  be  liable;  because  it  is  the  possession  of  the 
right  of  interference,  the  right  of  control,  that  puts  upon 


^  Salliotte  v.  King,  etc.,  Co. 
(1903),  122  Fed.  378;  58  C.  C.  A. 
466;    16  Am.   Neg.   Rep.  615,  n. ; 

65  L.  R.  A.  620;  Louisville,  etc., 
Railro.\d  v.  Tow  (1901),  23  Ky. 
Law  Rev.  408;  63  S.  W.  27;  21 
Am.  &  Eng.  Ry.  Cas.  (N.  S.),  441 ; 

66  L.  R.  A.  941 ;  Watson  Lodge  v. 
Drake  (1895),  29  S.  W.  632;  16 
Ky.  Law  Rev.  669;  Corrigan  v. 
Elsinger  (1900),  81  Minn.  42;  83 
N.  W.  492;  Klages  v.  Gillette, 
etc.,  Co.  (1902),  86  Minn.  458; 
90  N.  W.  1116;  Appel  v.  Eaton, 
etc.,  Co.  (1902),  97  Mo.  App. 
428;  71  S.  W.  741;  James  Mc- 
Neil &  Co.  V.  Crucible,  etc.,  Co. 
(1904),  207  Pa.  St.  493;  56  Atl. 
1067;  Southern,  etc.,  Co.  v.  Wal- 
lace (1899),  23  Tex.  Civ.  App. 
12;  54  S.  W.  638.  "The  question 
of   control   over   the    work,    while 


not  conclusive  in  all  cases  upon 
the  question  of  service,  is  to  be 
regarded  as  a  test  of  the  greatest 
importance;"  State  v.  Swayzee 
(1889).  52  N.  J.  Law  129;  18  Atl. 
697.    • 

*"  "When  a  question  arises  as 
to  whether  a  person  performing 
work  or  doing  business  for  an- 
other is  a  contractor  for  whose 
negligence  the  employer  is  not 
liable,  or  a  servant  for  whose 
acts  the  employer  is  responsible, 
the  character  of  the  contract  of 
employment,  the  nature  of  the 
business,  and  all  the  circumstances 
are  to  be  considered  in  determin- 
ing it."  Knicely  v.  West  Vir- 
ginia, etc.,  R.  (1908,  W.  Va.),  61 
S.  E.  811;  17  L.  R.  A.  (N.  S.), 
syllabus  by  the  court,  citing  Clapp 
v.  Kemp  (1877),  122  Mass.  481. 


WHO    ABE    INDEPENDENT    CONTRACTORS. 


33 


a  party  the  duty  of  seeing  that  the  person  who  stands  in 
that  relation  does  his  duty  properly.  If  they  have  retained 
to  themselves  the  right  of  directing  the  mode  of  doing  the 
work,  then  if  the  work  is  done  wrong  the  simple  principle 
is  that  they  are  responsible."  On  appeal,  a  verdict  for 
$5,500,  under  these  instructions  was  upheld.*'^  It  is  some- 
times broadly  stated  that  in  every  case  the  decisive  ques- 
tion is,  Had  the  defendant  the  right  to  control,  in  the  given 
particular,  the  conduct  of  the  wrong-doing  party?  Does 
he  reserve  the  essential  powers  of  a  master?**"* 

But  the  general  doctrine  is  more  or  less  subject  to  quali- 
fications. "The  existence  of  actual  present  control  and 
supervision  on  the  part  of  the  employer  ...  is  only  a 
circumstance  to  be  considered,  though  one  of  much  weight. 
...  To  get  at  the  truth  we  must  look  further  and  see  if 
the  person  said  to  be  a  hired  servant  and  agent  is  acting 


^LiNNEHAN  V.  Roberts  (1884), 
137  Mass.  123;  50  Amer.  Rep. 
287;  15  Am.  Neg.  Cas.  666,  n. ; 
Burd.  Cas.  Torts,  406.  Such  "em- 
ployer is  substantially  a  master 
and  remains  liable  under  the  usu- 
al doctrines  of  master  and  ser- 
vant." HufT.  Agcy.  2d  ed.,  sec. 
226. 

*'  Thomps.  Neg.  sec.  622,  citing 
Morgan  v.  Smith  (1893),  159 
Mass.  570;  35  N.  E.  101;  15  Am. 
Neg.  Cas.  667,  n. ;  Charlock  v. 
Freel  (1891).  125  N.  Y.  357;  26 
N.  E.  262;  Stephens  v.  Commis- 
sioners (1876),  3  Scotch  Sess. 
Cas.,  4th  series,  535;  Linnehan 
V.  Rollins,  supra;  Hex  amer  v. 
Webb  (1896),  101  N.  Y.  377;  4 
N.  E.  755;  54  Amer.  Rep.  703; 
Chase  Cas.  Torts  240;  Carlson  v. 
Stocking  (1895),  91  Wise.  432; 
65  N.  W.  58;  Holmes  v.  Tennes- 


see, etc.,  Railroad  (1897),  49  La. 
Ann.  1465 ;  22  So.  403 ;  1  Am.  Neg. 
Rep.  174;  Burton  v.  Galveston, 
etc..  Railroad  (1884),  61  Tex. 
526;  21  Am.  &  Eng.  Ry.  Cas.  218. 
Other  authorities  in  effect  like- 
wise declare  thus:  In  determin- 
ing whether  the  relation  is  one 
of  master  and  servant  or  of  inde- 
pendent contractor,  the  decisive 
question  is,  had  the  defendant  the 
right  to  control  in  the  given  par- 
ticular the  conduct  of  the  person 
doing  the  wrong.  Rait  v.  New 
England,  etc.,  Co.  (1896),  66 
Minn.  76;  68  N.  W.  729;  the 
ultimate  test  whether  the  relation 
of  master  and  servant  exists  is 
whether  the  right  or  duty  to  con- 
trol exists,  Roe  v.  Winston 
(1902).  86  Minn.  77;  90  N.  W. 
122. 


u 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


at  the  time  and  in  the  place  of  his  master  in  accordance  with 
and  representing  his  master's  will,  and  not  his  own.  It 
must  be  strictly  his  employer's  business  that  he  is  doing 
and  not  in  any  respect  his  own.  If  we  find  this  to  be  the 
case,  we  may  safely  conclude,  as  a  general  rule,  that  the 
relation  of  master  and  servant  exists,  so  as  to  render  appli- 
cable the  rule  of  law  that  the  employer  must  indemnify  and 
protect  the  agent  he  employs."  ^^ 


"^  CoRBiN  V.  American  Mills 
(1858),  27  Conn.  275;  71  Amer. 
Dec.  63.  In  a  note  commenting 
on  this  case  in  65  L.  R.  A.,  it  is 
said :  "The  doctrinal  position  of 
the  court  is  not  very  clearly  indi- 
cated. If  it  is  intended  to  den}! 
the  crucial  character  of  the  test 
supplied  by  the  existence  or  ab- 
sence of  coritrol,  the  case  is  mani- 
festly opposed  to  the  general  cur- 
rent of  the  authorities.  The  lattei 
part  of  the  quotation  seems  to 
suggest  that  an  employee  must 
always  be  pronounced  to  be  a 
servant,  if  it  is  found  that  he 
represents  the  will  of  the  em- 
ploj'er.  But,  according  to  the 
generally  received  view,  this  in- 
ference should  be  drawn  only 
when  the  employer's  will  is  rep- 
resented as  to  the  means  used  in 
performing  the  stipulated  work." 
Other  authorities  bear  out  the 
text.  "Whether  a  person  employed 
to  do  certain  work  is  to  be  re- 
garded as  a  servant  or  as  an 
independent  contractor  depends 
mainly  upon  whether,  under  the 
contract,  the  employer  retains  the 
pov/er  of  directing  and  control- 
ling the  work.  Where  the  em- 
ploye  is   put  in   exclusive  posses- 


sion, and  has  exclusive  control, 
furnishing  his  own  assistants,  and 
executing  the  work  in  detail, 
clear  of  any  supervision,  he  is  an 
independent  contractor.  It  is 
otherwise  if  the  employer  retains 
the  direction  and  control  of  the 
work.  See  the  cases  above  cited.'' 
Tifif.  Dom.  Rels.  p.  508,  note  221. 
"Except  in  cases  which  involve 
the  liabilities  arising  out  of  the 
torts  of  certain  classes  of  agents, 
the  existence  or  absence  of  a 
right  to  control  over  the  details 
of  the  work  in  question  must  be 
the  appropriate  test  by  which  it 
is  to  be  determined  whether  the 
person  employed  to  do  that  work 
is  or  is  not  an  independent  con- 
tractor." Note  to  Richmond  v. 
SiTTERDiNG  (1903,  Va.),  in  65  L. 
R.  A.  453.  "A  test  which  has 
been  proposed  and  generally  an 
adequate  one,  or  as  good  a  test 
put  in  a  few  words  as  can  be 
suggested  is.  Had  the  defendant 
the  right  to  control,  in  the  given 
particular,  the  conduct  of  the 
person  doing  the  wrong?  If  he 
had,  the  employer  is  liable;  if 
not,  he  is  not  liable,  for  the  reason 
that  the  one  doing  the  act  is  an 
independent  contractor."     Carrico 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


35 


In  his  Commentaries  on  Nej^ligence,  Judge  Thompson 
states  the  rule  thus:  If  the  proprietor  retains  for  himself 
or  for  his  agent  (e.  g.,  architect  and  superintendent)  a 
general  control  over  the  work,  not  only  with  reference  to 
results,  but  also  with  reference  to  methods  of  procedure, 
then  the  contractor  is  not  deemed  an  independent  contractor 
within  the  meaning  of  the  rule  under  consideration,  but  he 
is  deemed  the  mere  agent  or  servant  of  the  proprietor  and 
the  rule  of  respondeat  superior  operates  to  make  the  pro- 
prietor liable  for  his  wrongful  acts  or  those  of  his  servants, 
whether  the  proprietor  directly  interfered  with  the  work, 
and  authorized  and  commanded  the  doing  of  such  acts,  or 
not.  ^"  It  is  not  necessary  in  such  a  case,  that  the  employer 
should  actually  guide  and  control  the  contractor.  It  is 
enough    that    the    contract   vests    him    with    the    right    of 


V.  West  Virginia,  etc.,  Railboad 
Co.  (1894),  39  W.  Va.  86;  19  S. 
E.  571 ;  24  L.  R.  A.  50.  This  has 
been  criticised  as  "guarded  lan- 
guage that  is  to  be  ascribed  merel}' 
to  an  exercise  of  judicial  caution." 
Note  in  65  L.  R.  A.  454. 

''Thomps.  Neg.  sec.  659,  citing 
Mumby  v.  Bowden  (1889),  25  Fla. 
454;  6  So.  453;  Linnehan  v.  Rol- 
lins (1884),  137  Mass.  123;  50 
Amer.  Rep.  287;  15  Am.  Neg. 
Cas.  666,  n.;  Burd.  Cas.  Torts  400; 
St.  Johns,  etc..  Railroad  v.  Shalley 
(1894),  33  Fla.  397;  14  So.  890; 
compare.  Larsen  v.  Metropolitan 
Street  Railroad  (1892),  110  IMo. 
234;  19  S.  W.  416;  16  L.  R.  A. 
330;  33  Amer.  St.  Rep.  439;  45 
Alb.  Law  J.  514;  34  Cent.  Law  J. 
513.  "The  test  by  which  to  de- 
termine whether  the  person  who 
negligently   caused    injury   to    an- 


other was  acting  as  an  agent  or 
employe  of  the  person  sought  to 
be  charged,  or  as  an  independent 
contractor  is.  did  the  person  so 
sought  to  be  charged  have  the 
right  to  control  the  conduct  of 
the  wrongdoer  in  the  manner  of 
doing  the  act  resulting  in  such 
injury."'  Gahagen  v.  Aermotor 
Co.  '(1897),  67  Minn.  252;  69 
Minn.  914;  Corrigan  v.  Elsinger 
(1900),  81  Minn.  42;  83  Minn.  492. 
In  a  recent  Canadian  case  the 
legal  criterion  as  to  reserving  con- 
trol is  said  to  be  whether  the 
alleged  master  had  a  power  of 
controlling  the  work  which  the 
alleged  servant  was  doing  for  him 
"in  respect  to  an}i:hing  not  neces- 
sarily involved  in  the  proper  doing 
of  the  work."  Saunders  v.  To- 
ronto (1899),  26  Ont.  App.  Rep. 
265. 


36 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


guidance  and  control.  ^^  If  a  city,  through  its  officers,  re- 
serve a  general  control  over  the  contractor  in  respect  of 
the  mode  and  manner  of  doing  the  work,  the  city  will  be 
liable  for  the  contractor's  acts  and  omissions.  ^^  The  doc- 
trine has  explicitly  been  recognized  that  unless  the  employer 
relinquishes  his  control  over  the  work,  the  person  employed 
to  do  the  work  is  his  agent  or  servant.  ^®  An  instruction 
that,  if  the  defendant  employed  an  experienced  contractor 
to  perform  a  service,  the  defendant  was  not  liable,  was  held 
erroneous,  since  it  did  not  require  the  jury  to  find  the  work 
was  being  performed  under  an  independent  contract  giving 
the  contractor  exclusive  control  over  the  work.  ^^     As  in 


"LiNNEHAN  V.  Rollins  (1884), 
137  Mass.  123;  50  Amer.  Rep.  287; 
Burd.  Cas.  Torts  400;  15  Am. 
Xeg.  Cas.  666,  n. ;  Barg  v.  Bons- 
field  (1896),  65  Minn.  355;  68 
N.  W.  45 ;  Congregation  v.  Smith 
(1894),  163  Pa.  561;  30  Atl.  279; 
43  Amer.  St.  Rep.  808;  26  L.  R 
A.  504;  39  Amer.  Cent.  Law  J. 
452. 

"^  Denver  v.  Rhodes  (1886),  9 
Colo.  554;  13  Pac.  729;  Schwartz 
V.  GiLMORE  (1867),  45  Ills.  455; 
92  Amer.  Dec.  227 ;  Chicago,  etc., 
Railroad  v.  McCarthy  (1858), 
20  Ills.  385;  71  Amer.  Dec.  285; 
City  of  Chicago  v.  Joney  (1871), 
60  Ills.  387;  14  Am.  Neg.  Cas. 
418,  n. ;  Chicago  v.  Dermody 
(1871),  61  Ills.  431;  14  Am.  Neg. 
Cas.  418,  n. ;  Harper  v.  Milwau- 
kee (1872),  30  Wise.  365,  374; 
Hannon  v.  St.  Louis  Co.  (1876), 
62  Mo.  313;  Cincinnati  v.  Stone 
(1855),  5  Ohio  St.  38.  It  has 
been  held  that  a  general  control 
by  a  city  has  the  effect  of  render- 
ing the  city  liable  for  the  negli- 
gence of  the  contractor  under  the 


rule  of  respondeat  superior,  even 
though  the  contract  provides  that 
the  contractor  shall  save  the  city 
harmless  from  such  liability; 
Cooper  v.  Seattle  (1897),  16 
Wash.  462;  47  Pac.  887;  58  Amer. 
St.  Rep.  46;  a  decision  which 
Judge  Thompson  declares  is  "op- 
posed to  the  most  rudimentary 
conceptions  of  justice."  Thonip. 
Neg.  p.  603.  But  a  landowner 
who  continues  to  manage  and 
control  the  work  of  excavating 
under  the  wall  of  an  adjoining 
building  is  liable,  notwithstanding 
a  contract  with  a  third  person  for 
its  performance,  for  damages  re- 
sulting from  the  work;  Dunton 
V.  Niles  (1892),  95  Cal.  494;  30 
Pac.  762;  Watson  Lodge,  etc.,  v. 
Drake  (1895),  16  Ky.  Law  Rep. 
669;  29  S.  W.  632. 

™  Veazie  v.  Penobscot  Railroad 
(1860),  49  Me.  119.  The  sound- 
ness of  the  rule  as  thus  broadly 
asserted,  is  not  unquestionable. 
See  post,  Sec.  24. 

•"Hearn  v.  Quillen  (1901),  94 
Md.  39 ;  50  Atl.  402. 


WHO    ARE   INDEPENDENT    CONTRACTOltS. 


37 


the  case  of  a  proprietor  employing  an  independent  con- 
tractor, the  contractor  may  make  himself  liable  for  the 
negligence  of  an  independent  subcontractor  by  having  the 
work,  during  its  progress,  under  a  quasi  supervision,  as 
in  a  case  where  the  principal  contractor  does  work  on 
other  parts  of  the  building,  or  accepts  the  work  and  pays 
for  it  by  installments  as  it  progresses.  '^^  On  the  other  hand 
it  is  always  essential  that  the  contractor  or  subcontractor 
should  in  fact  be  free  from  the  control  of  the  person  em- 
ploying him.  ^^ 


Sec.  20.     How  Far  Retained. 

A  true  test  is  said  to  be  to  ascertain  whether  the  one 
rendering  service  to  another  does  so  in  the  course  of  an 
independent  occupation,  representing  the  employer's  will 
only  as  to  the  result  and  not  as  to  the  means.  ^^    In  a  recent 


•'Bast  V.  Leonard  (1870),  15 
Minn.  304. 

""  Ridgway  v.  Downing  Co. 
(1900),  109  Ga.  591;  34  S.  E. 
1028;  7  Am.  Neg.  Rep.  218;  Berg 
V.  Parsons  (1898),  156  N.  Y.  109; 
50  N.  E.  957;  41  L.  R.  A.  391; 
66  Amer.  St.  Rep.  542;  47  Cent. 
Law  J.  237;  4  Am.  Neg.  Rep.  432. 

"*  Rome,  etc..  Railroad  v.  Chas- 
TEEN  (1889),  88  Ala.  591;  7  So. 
94;  40  Amer.  &  Eng.  Railroad 
Cas.  559;  Powell  v.  Virginia 
Construction  Co.  (1890),  88 
Tenn.  692;  13  S.  W.  691;  17 
Amer.  St.  Rep.  925;  Bibb  v.  Nor- 
folk, etc..  Railroad  (1891),  87 
Va.  711;  14  S.  E.  163;  47  Amer. 
&  Eng.  R.  Cas.  651.  For  the 
meaning  of  result  in  the  test  com- 
monly adopted  declaring  one  to 
be  an  independent  contractor  who 


is  answerable  to  his  employer  only 
as  to  results,  and  not  as  to  means, 
see  Jensen  v.  Barbour  (1895),  15 
Mont.  582;  39  Pac.  906.  As  to 
what  reservation  of  control  is 
necessary,  compare  generally : 
Blake  V.  Ferris  (1851),  5  N.  Y. 
48;  55  Amer.  Dec.  304;  Leader  v. 
Moxon  (1773),  3  Wils.  461;  2 
W.  Bl.  924;  Detroit  v.  Corey 
(1861),  9  Mich.  165;  80  Amer. 
Dec.  78,  in  which  last  case  one 
judge  dissents.  "As  to  the  right 
of  supervision  which  will  render 
the  employer  liable  as  master 
of  the  contractor,"  compare  the 
cases  cited  in  Cooley  on  Torts, 
Students'  ed.,  484,  n.  51.  That 
one  doing  the  work  without  su- 
pervision on  the  part  of  the  em- 
ploj^er  is  an  independent  con- 
tractor; see  Kampmann  v.  Roth- 


38 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


Massachusetts  case  '•'•*  it  is  said :    "In  such  cases  the  party 
who  employs  the  contractor  indicates  the  work  to  be  done 
and  in  that  sense  controls  the  servant,  as  he  would  control 
the  contractor  if  he  were  present.      But  the  person  who 
receives  such  orders  is  not  subject  to  the  general  orders 
of  the  party  who  gives  them.     He  does  his  own  business  in 
his  own  way,  and  the  orders  which  he  receives  simply  point 
out  to  him  the  work  which  he  or  his  master  has  under- 
taken to  do.     There  is  not  that  degree  of   intimacy  and 
generality  in  the  subjection  of  one  to  the  other  which  is 
necessary  in  order  to  identify  the  two  and  to  make  the 
employer  liable  under  the  fiction  that  the  act  of  the  em- 
ployed is  his  act.     Of  course,  the  chances  are  that  some 
orders  will  be  given  which  are  not  strictly  within  the  con- 
tract of  the  master.     That  is  to  be  expected  from  the  rela- 
tive positions  of  the  servant  and  the  other  party.     If  the 
latter  has  something  that  he  wants  done  and  sees  a  working 
man  at  hand,  he  is  likely  to  ask  him  to  do  it,  and  if  it  is 
within  the  penumbra  of  his  business  the  servant  is  likely 
to  obey.     While  he  thus  goes  outside  his  master's  under- 
taking and  his  own  contract  with  his  master,  he  ceases  to 
represent  him;  ^^  and  he  may  make  the  other  liable  for  his 
acts,''^  but  he  does  not  on  that  account  become  the  servant 
of  his  master's  contractee   for   all   purposes,   or  when   he 


WELL  (1908,  Tex.),  109  S.  W. 
1089;  17  L.  R.  A.  (N.  S.),  758. 

"Driscoll  V.  Towle  (1902),  181 
Mass.  416;  63  N.  E.  922. 

*"  Citing :  Brown  v.  Engineer- 
ing Co.  (1895),  166  Mass.  75;  43 
N.  E.  1118;  32  L.  R.  A.  605;  55 
Amcr.  St.  Rep.  382;  Wyllie  v. 
Palmer  (1893),  137  N.  Y.  248; 
33  N.  E.  381 ;  19  L.  R.  A.  285. 

"Citing:   Kimball  v.  Cushm an 


(1869),  103  Mass.  194;  4  Amer. 
Rep.  528.  In  a  United  States 
case  it  was  said  to  be  "an  im- 
portant test  of  liability  that  the 
employer  reserves  the  power,  not 
only  to  direct  what  shall  be  done, 
but  how  it  shall  be  done."  New 
Orleans,  etc.,  Railroad  v.  Hanning 
(1872),  15  Wall  (U.  S.),  649,  657; 
7  Am.  Neg.  Cas.  309.  Plainly 
this   is   a  conclusive  test. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  39 

returns  to  tlie  work  which  the  -master  agreed  to  perform." 
"It  seems  impossible  to  avoid  the  conclusion  that  there  is, 
in  not  a  few  instances,  an  essential  conflict  of  judicial 
opinion  respecting  the  extent  to  which  an  employer  is  en- 
titled to  retain  the  power  of  directing  the  work  without 
subjecting  himself  to  the  duties  and  liabilities  of  a 
master."  ^"^ 

(a)     Employer  Liable. 

If  the  employer  retains  the  right  to  determine  and  direct 
the  manner  in  which  the  work  is  to  be  done,  to  point  out  the 
dangers  to  be  avoided,  and  to  fix  the  extent  to  which  the 
work  shall  be  carried  on,  it  does  not  matter  that  the  work 
is  let  out  by  the  job  to  one  who  supplies  laborers  and  ma- 
terials. The  principal  is  the  employer  and  not  the  contrac- 
tor, and  the  latter  and  his  laborers  are  the  servants  of  the 
former.  ^^  Where  a  city  charter  gave  the  street  commis- 
sioners authority  to  'direct  and  control  the  persons  em- 
ployed' on  the  streets,  and  it  was  stipulated  in  the  contract 
that  the  work  was  to  be  done  'under  the  direction  of  the 
street  commissioners,'  the  city  was  held  responsible  for 
an  injury  to  a  traveler  by  the  negligence  of  the  con- 
tractor. ^^  Where  a  city  contracted  for  the  erection  of  a 
building,  and  the  contract  provided  that  the  work  was  to 
be  done  'under  the  direction  of  the  committees  of  the  fire 
department  and  public  buildings,  representing  the  city 
council  of  said  city,  who  shall  have  entire  control  over  the 
manner  of  doing  or  shaping  all  and  every  part  of  said 
work,'  this  clause  was  held  to  reserve  such  control  to  tlie 

"'Note  to  Richmond  v.  Sitter-  51    U.    S.    App.    570;    Burd.    Cas. 

DING   (1903,  Va.),  in  65  L.  R.  A  Torts  403,   note;   Railroad   Co.  v 

485,  citing  authorities.  Manning,  supra. 

•^Atlantic     Transportation     Co  "*  St.    Paul  v.   Seitz    (1859),   3 

V.    Coneis    (1897),   82    Fed.    177;  Minn.  297;  73  Amer.  Dec.  753. 


40 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


city  as  to  make  it  liable  for  the  negligence  of  the  contractor 
and  his  servants.  ^^^  Negligence  in  not  shoring  up  the 
foundation  of  the  plaintiff's  house,  where  a  subway  was 
being  constructed  adjacent  to  it  for  the  city  by  a  contractor, 
was  held  to  be  that  of  the  city,  it  appearing  that  the  city 
retained  the  right  to  determine  when  any  shoring  up  of 
foundations  should  be  done,  the  contractor  to  receive  extra 
pay  therefor,  and  the  city  refused  or  neglected  to  authorize 
the  shoring  up  of  the  house  when  the  excavation  was 
made.  ^°^ 

It  is  intimated  in  a  Kentucky  case  that  a  contract  whereby 
a  railroad  company  employed  a  contracting  company  to  do 
certain  blasting  at  the  top  of  a  cut  at  the  end  of  a  tunnel 
did  not  of  itself  show  that  the  contracting  company  was 
an  independent  conti actor,  as  the  terms  of  the  contract  (not 
reported)  showed  that  the  railroad  company  reserved  the 
risfht  to  determine  the  extent  of  the  excavation  to  be  made 
and  undertook  to  furnish  a  locomotive  and  train  crew  to 
transport  the  material  removed.  ^°"  Where,  in  an  agree- 
ment between  a  railroad  company  and  a  contractor  it  was 
stipulated  that  certain  passenger  trains  were  to  be  run  under 
the  direction  of  the  company  and  under  its  control,  the 
company  was  held  liable  for  the  value  of  a  horse  run  over 
by  such  train.  ^^'^ 

The  wrong-doing  employee  may  have  been  a  servant  in 
one  capacity  and  not  in  another.  Thus,  an  owner  will  not 
be   held   to   have   abandoned   or   properly   transferred   the 


^»»  Covington  v.  Geyler  (1891), 
93  Ky.  275;  19  S.  W.  741. 

"^  Stork  v.  Philadelphia 
(1900),  195  Pa.  St.  101;  45  Atl. 
678;  49  L.  R.  A.  600;  (1901)  199 
Pa.  St.  462;  49  Atl.  236. 

""  Louisville,  etc.,  Railroad 
Co.  V.  Tow  (1901),  23  Ky.  Law 
Rep.  408;  63  S.  W.  27;  66  L.  R.  A. 


941;  21  Amer.  &  Eng.  Ry.  Cas. 
(N.  S.),  4411;  see,  also,  Speed  v. 
Atlantic,  etc.,  Railroad  (1879),  71 
Mo.  303 ;  2  Amer.  &  Eng.  R.  Cas. 
77;  Veazie  v.  Penobscot  Railroad 
(1860),   49   Me.    119. 

*"^  Wyman    v.     Penobscot,     etc.. 
Railroad    (1858),  46  Me.   162. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  41 

possession,  management  and  control  of  a  wrecked  vessel  by 
employing  an  independent  contractor  to  raise  it,  although 
the  person  so  employed  be  placed  in  the  actual  physical 
custody  of  the  wreck.  ^"-^  In  an  early  Ohio  case  it  was 
held  that  the  employee  in  question  was  a  contractor  for  the 
carpenter  work  only  on  a  building,  and  that  as  to  the  residue 
of  the  work  he  was  merely  the  superintendent  or  agent  of  the 
defendant,  where  it  appeared  that  the  defendant  engaged 
him  to  put  up  the  entire  building,  employ  all  the  men  and 
endorse  all  their  bills,  that  he  engaged  to  do  the  carpenter 
work  at  a  certain  per  cent,  of  the  bill,  and  employ  all  the 
mechanics,  etc. ;  that  the  defendant  employed  no  one  about 
the  building,  and  gave  the  employee  in  question  possession 
of  the  premises  which  he  was  to  keep  until  the  contract  was 
executed ;  that  the  defendant  was  at  the  place  of  work  once  or 
twice  a  day,  and  directed  him  to  keep  everything  safe ;  and 
that  he  had  nothing  to  do  with  the  mechanics.  ^'^^ 

Reserving,  but  not  exercising,  control  seems  to  be  im- 
material. It  was  remarked  in  a  New  York  case  that  while 
defendants  might  not  have  exercised  power  of  control  over 
the  work  of  S.  (alleged  contractor),  yet  if  they  retained  the 
right  to  exercise  such  power  during  the  progress  of  the 
work,  then  within  the  authorities  he  was  their  servant  and 
not  their  contractor.  ^^_^  So,  where  control  is  not  reserved 
but  is,  nevertheless,  exercised  the  independent  character 
may  be  destroyed.  "Since  the  rationale  of  the  doctrine  by 
which  an  employer  is  exempted  from  liability  for  the  torts 
of  an  independent  contractor  is  that,  e.v  Jiypothesi,  the  lat- 
ter is  not  under  the  control  of  the  former  with  respect  to 
the  execution  of  the  details  of  the  stipulated  work,  it  is 
clear  that  this  doctrine  is  not  applicable  in  cases  where,  as 

""The  Snark  (1899),68  LawT.  '"*  Goldman    v.    Mason     (1888), 

(N.  S.),  25.  18  N.  Y.  Super.  R.  376;  2  N.  Y. 

^"'Samyn  v.  McCloskey   (1853),  Supp.  337. 
2  Ohio  St.  536. 


42 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


a  matter  of  fact,  the  situation  thus  supposed  does  not  exist. 
If  the  employer  has  reserved  the  right  of  exercising  con- 
trol, the  person  employed  is  in  law  regarded  as  a  servant 
even  though  his  calling  may  for  some  purposes  be  indepen- 
dent." ^^"^  On  clearer  grounds,  the  employer  will  be  liable 
where  his  own  agent,  by  and  to  whom  he  retains  the  super- 
vision of  the  work,  directs  the  doing  of  the  particular  act 
which  causes  the  damage.  ^"^  So,  also,  it  is  immaterial 
that  the  right  is  reserved  to  make  alterations,  deviations 
and  omissions.  ^^^  Where,  under  an  arrangement  with  a 
master  ore  digger,  a  mineov/ner  furnishes  the  appliances 
which  are  to  be  used  by  the  digger's  servants,  the  owner 
stands  under  the  same  duty  to  them  that  he  would  if  they 


^°'  Note  to  Richmond  v.  Sitter- 
ding  (1903,  Va.),  in  65  L.  R.  A. 
484,  citing  cases.  There  are  cases 
in  which  the  circumstances  that 
the  employer  did,  in  point  of  fact, 
interfere  and  control  the  employes 
in  the  course  of  their  work,  has 
been  mentioned  as  a  cumulative 
element  supporting  the  conclusion 
that  they  were  mere  servants; 
Serandat  v.  Saisse  (1866),  L.  R. 
1  P.  C.  152;  Wallace  v.  Southern, 
etc.,  Co.  (1897),  91  Tex.  18;  40 
S.  W.  399.  The  independence  of 
the  contract  is  negatived  where 
the  evidence  is  that  a  person 
agreed  to  clear  a  piece  of  land  at 
a  certain  price  per  acre,  but  that 
the  employer  watched  the  progress 
of  the  work,  gave  advice  as  to 
the  setting  of  the  fire  to  burn  the 
timber  and  brushwood,  and  when 
he  was  told  that  a  certain  fence 
which  extended  to  the  plaintiff's 
land  might  take  fire,  said  that  it 
made  no  difference.  Johnston  v. 
Hastie    (1870),   30   U.    C,    Q.    B. 


232.  The  inference  that  a  man 
employed  to  make  an  excavation 
for  a  cellar,  at  a  specified  price 
per  diem,  and  commissions  on  the 
outlay,  was  a  contractor  and  not 
a  servant,  can  not  properly  be 
drawn,  where  the  employer's  own 
evidence  shows  he  was  exercising 
control  over  him  in  respect  to 
the  manner  in  which  the  earth 
should  be  removed,  so  as  to  se- 
cure the  safety  of  a  house  on  the 
adjacent  lot.  Moimd  City,  etc., 
Co.  V.  Conlon  (1887),  92  Mo.  221 ; 
4  S.  W.  922. 

"*  L  A  R  s  0  N  V.  Metropolitan 
Street  Railroad  Co.  (1892),  110 
Mo.  234;  19  S.  W.  416;  16  L.  R. 
A.  330;  33  Amer.  St.  Rep.  439; 
Butts  V.  Mackey  (1883),  72  Hun 
(N.  Y.),  562;  25  N.  Y.  Supp.  531; 
(1895),  147  N.  Y.  715;  42  N.  E 
722. 

^"^  Green  v.  Soule  (1904),  145 
Cal.  96;  78  Pac.  337;  17  Am.  Neg. 
Rep.  8. 


WHO    ABE   INDEPENDENT    CONTRACTOKS. 


43 


were  his  own  servants.  "The  relation  of  master  and  serv- 
ant does  not  cease  to  exist  so  long  as  the  master  reserves 
any  control,  or  right  of  control,  over  the  method  and  man- 
ner of  doing  the  work,  or  the  agencies  by  which  it  is  to 
be  effected."  ^^« 


(b)     Employer  not  Liable. 

The  fact  that  the  employer  retains  a  general  supervision 
over  the  place  where  the  work  is  done  and  the  right  to  in- 
spect the  work  to  see  if  it  conforms  with  the  contract,  does 
not  make  him  responsible  for  the  contractor's  negli- 
gence. ^^^     Where  one  person  lets  a  contract  to  another  to 


""Fell  V.  Rich  Hill,  etc.,  Co. 
(1886),  23  Mo.  App.  216;  Speed 
V.  Atlantic,  etc.,  Railroad  (1879), 
71  Mo.  303,  308;  2  Amer.  &  Eng. 
R.  Cas.  77. 

Plaintiff  was  injured  while  op- 
erating defendant's  unguarded 
lath  mill.  Defendant  had  a  con- 
tract with  T.  whereby  T.  was  to 
emplo}'  the  men  and  defendant 
was  to  pay  them  out  of  the  con- 
tract price,  and  T.  was  to  receive 
the  balance  of  the  contract  price. 
Defendant  contended  T.  was  an 
independent  contractor.  "But  we 
can  not  concede  that  this  result 
followed  from  the  facts  pleaded. 
T.'s  relation  to  the  defendant  was 
rather  that  of  agent  than  of  inde- 
pendent contractor.  Defendant 
did  not  lease  or  surrender  to  him 
the  management  or  control  of  this 
department  of  its  mill.  It  surren- 
dered only  the  right  to  employ 
the  persons  needed  to  carry  on 
the  work.  Tt  still  retained  con- 
trol as  to  the  manner  and  mode 


of  doing  the  work,  and  control 
over  the  workmen  employed  by 
T.  This,  as  we  sajs  did  not  make 
T.  an  independent  contractor.  He 
was  but  the  agent  of  defendant 
acting  in  this  regard  for  and  on 
its  behalf."  Barclay  v.  Puget 
Sound,  etc.,  Co.  (1908),  48  Wash. 
241 ;  93  Pac.  430;  16  L.  R.  A.  (N. 
S.),  140,  citing  Johnson  v.  Spe.\r 
(1889),  76  Mich.  139;  15  Amer. 
St.  Rep.  298;  42  N.  W.  1092. 

'"  Kelleher  v.  Schmitt,  etc.,  Co. 
(1904),  122  Iowa  635;  98  N.  W. 
482;  16  Am.  Neg.  Rep.  609,  n. ; 
Boomer  v.  Wilbur  (1899),  176 
Mass.  482;  57  N.  E.  1004;  53  L. 
R.  A.  172;  8  Am.  Neg.  Rep.  246; 
Vosbeck  v.  Kellogg  (1899),  78 
Minn.  176;  80  N.  W.  957;  Gayle 
V.  Missouri,  etc.,  Co.  (1903),  177 
Mo.  427;  76  S.  W.  987;  Cullom 
V.  McKelvey  (1898),  49  N.  Y. 
Supp.  669;  Hawke  v.  Brown 
(1898),  50  N.  Y.  Supp.  1032; 
Omaha,  etc..  Co.  v.  Hargadine 
(1904,  Nebr.),  98  N.  W.  1071;  36 


44 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY 


do  a  particular  work  reserving  to  himself  no  control  over 
the  manner  in  which  the  work  shall  be  performed,  except 
that  it  shall  conform  to  a  particular  standard  when  com- 
pleted, he  is  not  liable  for  any  injury  which  may  occur  to 
others  by  reason  of  any  negligence  of  the  person  to  whom 
the  contract  is  let."  ^^^  "If  the  employer  has  no  such  per- 
sonal control,  but  has  merely  the  right  to  reject  work  that 
is  ill  done,  or  to  stop  work  that  is  not  properly  being  done, 
but  has  no  power  over  the  person  or  time  of  the  workman 
or  artisans  employed,  then  he  will  not  be  their  superior  in 
the  sense  of  the  maxim  I'espondeat  superior,  and  not  an- 
swerable for  their  fault  or  negligence."  ^^^  It  is  said  that 
a  contractor  is  not  deemed  to  have  full  control  of  the  work 
of  excavating  a  trench  for  a  pipe  line  across  a  highway 
where  the  agreement  provides  that  if  the  work  is  not  done 
in  a  manner  satisfactory  to  the  superintendent  of  the  con- 
tractee,  he  may  put  men  in  the  trench  at  the  contractor's 


Am.  &  Eng.  Ry.  Cas.  (N.  S.),  827; 
16  Amer.  Neg.  Rep.  610,  n. ;  Jas- 
koey  V.  Consolidated  Gas  Co. 
(1901),  67  N.  Y.  Supp.  976;  Si- 
monton  v.  Perry  (1901,  Tex.  Civ. 
App.),  62  S.  W.  1090. 

Reserving  the  general  control 
as  to  the  location  and  character 
of  the  work  to  be  performed  by 
another  and  his  servants  does  not 
make  the  employer  liable;  Teller 
V.  Bay,  etc..  Dredging  Co.  (1907, 
Cal.),  90  Pac.  942;  12  L.  R.  A.  (N. 
S.),  267.  In  a  Kansas  case  it  is 
held  that  it  is  not  essential  that 
one  engaging  a  contractor  to  pro- 
duce a  given  result  should  reserve, 
or  should  interfere  and  take, 
complete  or  exclusive  control  over 
all  features  of  the  work,  to  render 
him  liable  as  master  of  the  con- 
tractor's   servants ;    but    the    fact 


that  he  possesses  a  limited  or 
partial  control  to  the  extent  of 
conditioning  the  work  in  many 
respects  will  not  entail  such  lia- 
bility if  the  contractor  is  left  free 
to  exercise  his  own  will  generally 
respecting  methods  and  means. 
Kansas  City,  etc.,  R.  v.  Loosley 
(1907),  76"Kans.  103;  90  Pac. 
990:  Cf.  Northrup  v.  Hayward 
(1906),  99  Minn.  299;  109  N.  W. 
241 ;  Wm.  Cameron  Co.  v.  Real- 
muto  (1907,  Tex.  Civ.  App.),  100 
S.  W.   194. 

"^Vincennes,  etc.,  Co.  v.  White 
(1890),  124  Ind.  376;  24  N.  E. 
747. 

"*  Stephens  v.  Commissioners 
(1876),  3  Sc.  Sess.  Cas.,  4th 
series,  542;  approved  in  Saunders 
v.  Toronto  (1889),  26  Ont.  App. 
Rep.  265. 


WHO  ABE  INDEPENDENT  CONTRACTORS.  45 

expense  to  make  the  necessary  change,  and  also  that  if  the 
contractor  fails  to  prosecute  the  work  with  due  diligence, 
the  contractee  may  finish  the  same  and  charge  it  to  the  con- 
tractor. ^'^  A  partial  control  over  the  work  on  the  part  of 
a  municipal  corporation,  with  a  view  of  seeing  to  the  ac- 
complishment of  certain  results,  does  not  establish  the  re- 
lation of  master  and  servant  between  the  corporation  and 
the  contractor  where  the  general  control  in  respect  of  its 
manner  and  method  of  execution,  and  the  oversight  and 
direction  of  the  performance  of  the  actual  labor,  remain  in 
the  contractor.  ^^^  A  mere  reservation  of  power  to  direct 
changes  in  the  work  being  done  by  a  contractor  for  a  city 
does  not  render  the  city  liable.  ^^^  A  stipulation  in  a  rail- 
way contract  that  the  work  was  to  be  done  in  accordance 
v^ath  the  plans,  specifications  and  instructions  furnished 
by  the  company  was  held  not  to  take  the  case  out  of  the 
general  rule.  ^^'  The  mere  taking  of  a  bond  of  indemnity 
from  a  contractor  does  not  constitute  such  control  as  to 
render  a  city  or  other  employer  liable  per  se.'^^^  Where  the 
superintendent  of  a  building,  used  for  storing  cotton,  directs 
an  employee  of  a  contractor,  engaged  to  paint  the  building, 
to  leave  only  one  window  open  at  a  time  on  going  through 
upon  a  scaffold  used  by  him  in  painting,  because  of  the 
danger  from  fire  by  the  entrance  of  sparks,  it  is  not  such 

'"Washington,  etc.,  Co.  v.  Wil-  York  (1853),  8  N.  Y.  222;  Nevins 

kinson    (1885,   Pa.),   1   Cent.   Rep.  v.  Peoria   (1866),  41  Ills.  502;  89 

637;  2  Atl.  338.  Am.  Dec.  392.     Contra,  Harper  v. 

"'Norwalk,  etc..  Co.  v.  Norwalk  Milwaukee    (1872),  30  Wise.  365. 

(1893),  63  Conn.  495;  28  Atl.  32;  "'Hunt    v.    Pennsylvania    Rail- 

Beatt)'  V.  Thielman  (1890).  29  N.  road   Co.    (1866),  51    Pa.  St.  475. 

Y.   St.   Rfep.  498;  8   N.   Y.   Supp.  "^  Erie     v.     Caulkins,     supra; 

645;    Cary  v.  Chicago    (1895),  60  Staldter    v.    Huntington     (1899), 

Ills.  App.  341.  153  Ind.  354;   53  N.  E.  88;  con- 

"'Erie  v.  C.\ulkins   (1877),  85  tractors  had  entered  into  an  obli- 

Pa.  St.  247;  27  Amer.  Rep.  642;  gation    with    the    city    to    save    it 

Reed    v.    Allegheny    City    (1875),  harmless    from    damages    arising 

79    Pa.    St.    330;     Pack    v.    New  out    of    their    negligence. 


46 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


retention  of  control  as  makes  the  proprietor  liable.  ^^^  Pro- 
visions in  a  contract  subletting  construction  work  which 
a  contractor  has  undertaken  to  perform  for  the  construc- 
tion company  (the  principal  contractor)  placing  the  work 
under  the  supervision  of  the  construction  company's  engi- 
neer, who  has  the  power  to  discharge  employees  as  the  in- 
terests of  the  construction  company  demand,  and  to  require 
the  increase  of  the  working  force  and  direct  its  application ; 
and  requiring  the  contractor  to  furnish  tools ;  and  empower- 
ing him  to  suspend  work  and  pay  the  employees  as  a  pro- 
tection against  liens;  and  requiring  the  subcontractor  to 
save  the  contractor  harmless  from  the  claims  of  third  per- 
sons, do  not  create  the  relation  of  master  and  servant  be- 
tween the  contractor  and  the  subcontractor  as  distinguished 
from  that  of  independent  contractor.  ^^^  It  has  been  held 
that  a  municipal  corporation  by  reserving  the  right  to  super- 
vise the  work  of  a  contractor  and  requiring  him  to  employ 
only  its  own  citizens,  does  not  thereby  exercise  such  control 
of  the  work  as  to  render  it  liable  for  the  acts  of  his  em- 


""Wendler  v.  Equitable,  etc., 
Society  (1897),  19  App.  Div.  50; 
45  N.  Y.  Supp.  86. 

^=»GooD  V.  Johnson  (1907),  38 
Colo.  440;  88  Pac.  439;  8  L.  R. 
A.  (N.  S.),  896,  citing  Rogers  v. 
Florence  Railroad  Co.  (1899), 
31  S.  C.  378;  9  S.  E.  1059;  39 
Amer.  &  Eng.  R.  Cas.  348;  Pio- 
neer, etc.,  Co.  V.  Hansen  (1898), 
176  Ills.  100;  52  N.  E.  17;  3  Am. 
Neg.  Rep.  16;  Foster  v.  Chicago 
(1902),  197  Ills.  264;  64  N.  E. 
322 ;  Mayhew  v.  Sullivan,  etc.,  Co. 
(1884),  76  Me.  100;  15  Am.  Neg. 
Cas.  296.  n.;  Morgan  v.  Smith 
(1893),  159  Mass.  570;  35  N.  E. 
101;    15   Am.   Neg.   Cas.   667,  n.; 


Corrigan  v.  Elsinger  (1900),  81 
Minn.  42;  83  N.  W.  492;  Upping- 
TON  V.  New  York  (1901),  165  N. 
Y.  222;  59  N.  E.  91;  53  L.  R.  A. 
550;  8  Am.  Neg.  Rep.  366;  Hard- 
ing V.  Boston  (1895),  163  Mass. 
14;  39  N.  E.  411;  Hughes  v. 
Cincinnati,  etc.,  Railroad  (1883), 
39  Ohio  St.  461 ;  15  Amer.  &  Eng. 
R.  Cas.  100;  Thomas  v.  Altoona, 
etc.,  Ralroad  Co.  (1899),  191  Pa. 
St.  361 ;  43  Atl.  215 ;  6  Am.  Neg. 
Rep.  383;  Callan  v.  Bull  (1896), 
113  Cal.  593;  45  Pac.  1017;  Blumb 
V.  Kansas  City  (1884),  84  Mo. 
112;  54  Amer.  Rep.  87;  Erie  v. 
Caulkins  (1877),  85  Pa.  247; 
27  Amer.  Rep.  642. 


WHO    ARE   INDEPENDENT    CONTRACTORS. 


47 


ployees.  ^^^  The  proprietor  will  not  be  responsible  where 
he  retains  the  general  superintendence  of  the  work,  where 
the  contractor  engages  to  discharge  any  servant  at  his  re- 
quest, and  where  he  reserves  the  right  to  terminate  the 
contract.  ^-^ 

Sec.  21.    Right  of  Dismissal. 

If  the  employer  reserves  the  right  of  dismissing  the 
contractor,  such  reservation  is  merely  an  element  to  be  con- 
sidered in  determining  whether,  viewing  the  contract  as 
a  whole,  the  relation  of  independent  contractor  existed.  ^^^ 
It  is  well  settled  that  if  the  remaining  provisions  of  a  con- 
tract show  it  to  be  an  independent  one,  the  mere  fact  that 
the  employer  has  reserved  the  right  to  cancel,  annul  or 
revoke  it,  or  to  suspend  or  re-let  the  work,  if  there  is  some 
specific  ground  for  dissatisfaction,  will  not  cast  on  him  a 
master's  responsibilities.  ^-^  Even  though  the  stipulations 
give  the  employer  the  right  to  insist  upon  the  dismissal  of 
incompetent  workmen,  the  relation  may  remain  that  of 
employer  and  contractor.  ^-^  It  has  been  laid  down  that 
the  relation  of  master  and  servant  will  not  be  inferred  in  a 


'=^  Harding  v.  Boston  (1895), 
163  Mass.  14;  39  N.  E.  411.  Thi^ 
has  been  declared  to  be  "difficult 
to  reconcile  with"  the  general 
principles  governing  such  cases ; 
7  Thomps.   Neg.  p.   100. 

'■■  Schular  v.  Hudson  River 
Railroad  Co.  (1862),  38  Barb.,  N. 
Y.    653. 

'-*  Morgan  v.  Bowman  (1856), 
22  Mo.  538;  City  of  Chicago  v. 
Joney  (1871),  60  Ills.  383;  14 
Am.  Neg.  Cas.  418.  n. ;  New  Al- 
bany, etc.,  Mill  v.  Cooper  (1892), 
131    Ind.   363;   30  N.   E.   294;    14 


Amer.  Neg.  Cas.  456;  Bayer  v. 
Railroad  Co.  (1896),  68  Ills.  App. 
219. 

"*  See  cases  cited  in  note  to 
Richmond  v.  Sitterding  (1903, 
Va.),  in  65  L.  R.  A.  p.  502. 

'^Uppington  v.  City  of  New 
York  (1901),  165  N.  Y.  222;  59 
N.  E.  91;  6  Am.  Neg.  Rep.  366; 
53  L.  R.  A.  550 ;  Reedie  v.  London, 
ETC..  R.\ilro.\d  Co.  (1849),  4 
Exch.,  W.  H.  &  G.,  244;  6  Eng. 
Rail.  &  Corp.  Cas.  184;  4  Amer. 
Neg.  Rep.  438,  n. ;  9  Id.  122.  n. ; 
in  which  the  company  was  given 


48 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


case  where  it  appears  that  the  power  of  discharge  was  not 
an  incident  of  the  contract  of  employment.^-"  Some  courts 
in  determining  whether  a  given  employee  is  a  servant  or 
an  independent  contractor  take  into  consideration  the  man- 
ner of  payment,  whether  by  the  day,  etc.,  with  power  to  dis- 
charge reserved,  or  by  the  piece  or  entire  job.  '^^'^  Where 
a  raih'oad  company  stipulates  with  the  contractor  for  the 
construction  of  its  road  and  its  bridges  that  any  foreman  or 
laborer  employed  by  the  contractor,  who  shall  execute  his 
work  in  a  faulty  or  unskillful  manner,  or  be  disrespectful 
or  riotous  in  his  conduct,  shall  be  forthwith  dismissed  by 
the  direction  of  the  engineer  of  the  railroad  company,  the 
latter  does  not  so  retain  control  of  the  independent  con- 
tractor as  to  be  liable  thereby.  ^^^ 

According  to  certain  authorities,  the  conclusion  that  the 
employee  was  not  an  independent  contractor  is  evident  if 
he  was  liable  to  dismissal  at  any  time,  and  the  case  is  for 
the  jury  whenever  there  is  such  evidence,  and  when  the 
remaining  testimony  is  either  ambiguous  or  tends  to  estab- 
lish the  same  conclusion.  ^-'^  Where  a  house  owner  em- 
ployed a  blacksmith  to  adjust  and  secure  a  coal  hole  cover, 
he  being  subject  to  the  employer's  direction  and  control 
and  liable  to  be  dismissed  at  any  time,  such  blacksmith  is 
not  an  independent  contractor  for  whose  negligence  the 
owner  would  not  be  liable.  ^•*-'     It  is  said  that  the  liability 


the  power  to  watch  the  general 
progress  of  the  work  and  to  dis- 
miss   incompetent    workmen. 

'^  Pioneer,  etc.,  Co.  v.  Hansen 
(1898),  176  Ills.  100;  52  N.  E.  17; 
3  Am.  Neg.  Rep.  16. 

'^  Schular  v.  Hudson  River 
Railroad  Co.  (1862),  38  Barb.,  N. 
Y.  653. 

'^  Bayer  v.  Chicago,  etc.,  Rail- 
road   (1896),  68  Ills.  App.  219. 


^''Oldfield  V.  Furness  (1893), 
C.  A.  58  J.  P.  102;  9  Times  L.  R. 
513;  Speed  v.  Atlantic,  etc.,  Rail- 
road (1879),  71  Mo.  303;  3  Am. 
&  Eng.  R.  Cas.  77;  Bernaur  v. 
Hartman,  etc.,  Co.  (1889),  33  Ills. 
App.  491 ;  Blake  v.  Thirst  (1863),  2 
Hurls.  &  C.  20;  32  L.J.  Exch.  189. 

^'"Dickson  v.  Hollister  (1889). 
123  Pa.  421 ;  16  Atl.  484;  10  Amer. 
St.  Rep.  533. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


49 


of  a  city  is  especially  marked  where  the  contract  not  only 
allows  it  to  supervise  the  work,  but  gives  the  city  ofhcial 
the  power  to  discharge  incompetent  and  disobedient  em- 
ployees. ^-'^  Where  laborers  are  employed  and  paid  di- 
rectly by  a  railroad  company  for  grading  under  directions 
of  the  company's  chief  engineer,  and  the  laborers  are  sub- 
ject to  discharge  when  the  work  is  delayed  or  improperly 
done,  they  are  servants  of  the  railroad  company.  ^^^ 

Sec.  22.     Supervision  or  Approval  by  Employer. 

On  the  other  hand,  an  independent  contractor  is  not 
converted  into  a  servant  by  provisions  in  the  contract  which 
reserve  to  the  employer  certain  rights  of  supervision  and 
approval,  during  the  progress  of  the  work.  ^"^     That  the 


''"  Scott  V.  Springfield  (1899), 
81   Mo.  App.  312. 

"■'■  St.  Johns,  etc.,  Railroad  v. 
Shalley  (1894),  33  Fla.  397;  14 
So.  890.  "Of  all  the  tests  which 
have  been  suggested,  and  the  au- 
tliorities  are  far  from  uniform,  it 
would  seem  that  this,  the  power 
of  substitution  of  one  man  for 
another,  is  most  satisfactory.  It 
may  not  in  all  cases  be  as  appar- 
ent as  it  is  in  this  one  that  B. 
has  no  power  to  remove  or  differ- 
ently employ  the  individual  whom 
A.  has  selected  and  assigned  to 
a  special  line  of  work,  but  when 
it  does  appear,  the  amount  of 
control  which  B.  exercises  over 
the  individual  is  surely  insuffi- 
cient to  establish,  even  pro  hac 
vice,  the  relation  of  master  and 
servant."  The  Slingsley  (1903), 
120  Fed.  748.  "In  some  cases,  the 
test  of  lialiility  for  the  servant's 
torts,    in    such   cases   as   we   have 


been  considering,  has  been  de- 
clared to  be,  who  has  the  right  of 
selecting  and  discharging  him?  If 
this  test  is  applied,  the  liability 
will  be  thrown  in  almost  every 
case  upon  the  general  master." 
Burd.  Torts,  139,  citing  New  Or- 
leans. ETC.,  Railro.ad  v.  Norwood 
(1885),  62  Miss.  565;  52  Amer. 
Rep.  191 ;  Alichael  v.  Stanton 
(1875),  3  Hun  (N.  Y.),  462;  Bur- 
ton v.  Galveston,  etc.,  Railroad 
(1884),  61  Tex.  526;  21  Am.  & 
Eng.  Ry.  Cas.  218;  The  Slingsley, 
supra. 

^  Steel  v.  Southeastern  Rail- 
road Co.  (1855).  16  C.  B.  550; 
Casement  v.  Brown  (1893),  148 
U.  S.  615;  13  Sup.  Ct.  Rep.  672: 
Thomas  v.  Altoona,  etc..  Railroad 
(1899),  191  Pa.  361;  43  Atl.  215; 
6  Am.  Neg.  Rep.  383.  Thus, 
where  a  superintendent  chosen  by 
a  school  district  to  superintend 
certain  improvements  in  a  school 


50  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITy. 

employer's  agent  has  the  right  to  supervise,  inspect  or  super- 
intend the  work  for  the  purpose  of  seeing  that  it  is  done 
according  to  specifications  is,  in  effect,  held  in  several  cases 
not  to  amount  to  such  reservation  of  control  as  to  trans- 
form an  (otherwise)  independent  contractor  into  a  serv- 
ant. ^^^  The  independent  nature  of  the  contract  is  not 
overcome  by  simply  providing  that  the  work  shall  be  'under 
the  supervision  and  subject  to  the  approval'  of  the  employer 
or  his  agent,  ^^^  or  'done  to  the  satisfaction'  of  the  em- 
ployer's representative.  ^^^  If  a  municipality  in  letting  the 
contract  retains  no  control  over  the  contractor  except 
through  an  official,  whose  duty  it  is  to  see  that  the  work  is 
conducted  according  to  contract,  the  city  will  not  be  liable 
for  the  contractor's  negligence.  ^2'     In  general,  where  the 


house  is  onl)'  authorized  to  direct 
the  person  employed  in  respect  to 
the  manner  in  which  the  work  is 
to  be  executed,  the  latter  is  an 
independent  contractor ;  School 
District  v.  Fuess  (1881),  98  Pa. 
600;  42  Amer.  Rep.  627. 

'**  Murphy  v.  Ottawa  (1887),  13 
Ont.  R.  334;  Nevins  v.  Peoria 
(1866),  41  Ills.  502;  89  Amer. 
Dec.  392;  Bayer  v.  Chicago,  etc., 
Railroad  (1896),  68  Ills.  App.  219; 
New  Albany,  etc.,  Co.  v.  Cooper 
(1891),  131  Ind.  363;  30  N.  E. 
294;  14  Am.  Neg.  Cas.  456;  Jas- 
koey  V.  Consolidated,  etc.,  Co. 
(1901),  33  Misc.  (N.  Y.),  790;  67 
N.  Y.  Supp.  976 ;  Clare  v.  Nation- 
al, etc..  Bank  (1875),  8  Jones  & 
S.  (N.  Y.),  104;  Welsh  v.  Parrish 
(1892),  148  Pa.  599;  24  Atl.  86. 
The  mere  fact  that  the  proprietor 
requires  the  work  to  be  done 
under  the  supervision  and  to  the 
satisfaction   of    his    representative 


does  not  render  him  liable  for 
the  negligence  of  his  contractor; 
Indiana,  etc.,  Co.  v.  Cray  (1897), 
19  Ind.  App.  565;  48  N.  E.  803; 
Thomas  v.  Altoona,  etc..  Railroad 
(1899),  191  Pa.  St.  361;  43  Atl. 
215;   6  Am.   Neg.  Rep.  383. 

"'Callan  v.  Bull  (1896),  113 
Cal.  593;  45  Pac.  1017. 

^"Eldred  v.  Mackie  (1901), 
178  Mass.  1 ;  59  N.  E.  673;  Smith 
V.  Milwaukee,  etc.,  Exch.\nge 
(1895),  91  Wise.  360;  64  N.  W. 
1041,  30  L.  R.  A.  504;  51  Amer. 
St.  Rep.  912. 

"'Lenderink  v.  Rockford  (1904), 
135  Mich.  531;  98  N.  W.  4; 
6  Am.  Neg.  Rep.  614,  n. ;  and 
see,  McMullen  v.  New  York 
(1905),  93  N.  Y.  Supp.  772. 
Where  the  work  was  to  be  done 
"to  the  satisfaction  and  accept- 
ance of  the  superintendent  of 
sewers,  and  subject  to  his  inspec- 
tion  and    direction    at   all   times," 


WHO    ARE   INDEPENDENT    CONTRACTORS, 


51 


only  control  reserved  is  to  require  the  work  to  be  performed 
to  conform  to  the  contract,  or  to  some  prescribed  standard, 
or  to  be  done  to  the  satisfaction  of  the  employer's  engineer 
or  architect,  the  doctrine  of  independent  contractor  ap- 
plies. ^'-^^  The  United  States  Supreme  Court  has  held  that 
the  independent  nature  of  the  contract  is  not  destroyed  by 
a  provision  that  suitable  material  is  to  be  furnished 
and  a  specified  structure  erected,  subject  to  the  daily 
approval  of  the  employer's  engineer. ■^^'^     For  cases  more 


the  city  was  held  not  responsible; 
Harding  v.  Boston  (1895),  163 
Mass.   14;   39  N.  E.  411. 

^^  Vincennes,  etc.,  Co.  v.  White 
.(1890),  124  Ind.  376;  24  N.  E. 
747;  Hughbanks  v.  Boston,  etc., 
Co.  (1894),  90  Iowa  267;  60  N. 
W.  640;  14  Am.  Neg.  Cas.  592,  n.; 
Humpton  v.  Unterkircher  (1896), 
97  Iowa  509;  66  N.  VV.  776;  14 
Am.  Neg.  Cas.  595;  Powell  v. 
Construction  Co.  (1890),  88 
Tenn.  692;  13  S.  W.  691;  17 
Amer.  St.  Rep.  925 ;  Green  v. 
Soule,  (1904),  145  Cal.  96;  78 
Pac.  337;  17  Am.  Neg.  Rep.  8; 
Pioneer,  etc.,  Co.  v.  Hansen 
(1898),  176  Ills.  100;  52  N.  E.  17; 
3  Am.  Neg.  R.  16.  But  where  the 
contract  provided :  "The  work  to 
be  done  under  the  direction  of 
the  city  civil  engineer,  or  agent 
appointed  by  the  city  council  for 
the  same,  who  shall  have  entire 
control  over  the  manner  of  doing 
and  shaping  all  or  any  part  of  the 
same,  and  whose  directions  must 
be  strictly  obeyed,"  the  defendant 
city  was  held  liable  for  the  negli- 
gence of  the  contractor  in  depos- 
iting a  pile  of  stones  so  as  to 
obstruct  the  flow  of  surface  water 


and  flood  the  premises  of  an 
adjacent  owner,  partly  on  the 
principle  of  respondeat  superior 
and  partly  on  the  ground  that  the 
city  owed  a  public  duty  to  pre- 
vent or  remove  nuisances  in  its 
streets;  Cincinnati  v.  Stone, 
(1855),  5  Ohio  St.  38.  A  railroad 
company  is  liable  for  injuries  in 
blasting  for  a  tunnel  where  it 
in  fact  controls  the  work  which 
results  in  the  injury;  Louisville, 
ETC.,  Railroad  v.  Tow  (1901),  23 
Ky.  L.  Rep.  408;  63  S.  W.  27;  66 
L.  R.  A.  941 ;  21  Am.  &  Eng.  Ry. 
Cas.   (N.  S.),  441. 

""' Casement  v.  Brown  (1893), 
148  U.  S.  615.  But  an  instruction 
was  approved  which  stated  that 
where  the  work  is  split  up  in 
diff'erent  contracts  and  the  owner 
undertakes  to  supply  one  of  the 
contractors  with  materials  to  be 
used  in  the  execution  of  his  con- 
tract, and  no  provision  is  made  for 
supervising  the  work  or  erecting 
or  maintaining  guards  around  it, 
it  is  justifiable  to  infer  that  the 
owner  reserved  supervision  and 
that  his  duty  to  protect  the  public 
had  not  been  devolved  on  others ; 
HoMAN    v.  -Stanley    (1870).    66 


52  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

or    less    to    the    contrary,    see    those    referred    to    in    the 
note  below.  ^^'^ 

Sec.  23.     Supervision  or  Approval  by  Architect. 

When  one  contracts  with  a  builder  to  erect  a  building  or 
other  structure  on  his  land,  according  to  certain  plans  and 
specifications,  the  contractor  to  furnish  all  materials  and 
labor,  and  to  be  answerable  to  the  owner  only  for  certain 
results,  he  will  be  considered  an  independent  contractor 
and  not  a  servant,  even  though  the  work  is  supervised  by 
an  architect  of  the  owner's  selection. ^■'^  The  mere  fact 
that  the  proprietor  of  a  building  undergoing  erection  or 
repairs  employs  an  architect  to  inspect  the  work,  and  see 
that  it  is  constructed  according  to  contract,  does  not  render 
the  owner  liable  for  the  negligence  of  the  contractor  or  his 
servants  in  the  prosecution  of  the  work.  ^^^  But  this  pro- 
vision in  a  contract  for  wrecking  a  building  was  held  to 
reserve  such  control  as  to  render  the  owner  liable:  "The 
whole  of  the  work  of  demolition  to  be  carried  out  according 
to  the  directions  of  the  supervising  architect,  whose  direc- 
tions upoli  all  points  in  dispute  I  agree  to  accept  as  final."  ^^^ 

Pa.  464;  5  Amer.  Rep.  389.    Com-  487;   172  Ills.   177;  50  N.  E.  242. 

pare,    McCleary    v.    Kent    (1854),  The   contractors   are  regarded   as 

3  Duer   (N.  Y.  Super.  Ct),  27.  independent,    though    the    owner's 

""  Treadwell      v.      New      York  superintendent     is     charged     with 

(1861),  1  Daly   (N.  Y.  Com.  P.),  the  duty  to  see  whether  the  con- 

128;    Martin  v.   Tribune  Associa-  tractors    are    carrying    out    their 

tion  (1883),  30  Hun  (N.  Y.),  391;  agreement;  Miller  v.  Merritt,  etc., 

Potter     V.     Seymour      (1859),     4  Co.    (1905),  211    Pa.   127;  60  Atl. 

Bosw.   (N.  Y.  Super.  Ct),  140.  508. 

'"  Jefferson  V.  Jameson,  etc.,  Co.  "'Geist    v.    Rothschild     (1900), 

(1897),    165    Ills.    138;    46    N.    E.  90     Ills.     App.     324;     Frassi     v. 

272;  Casement  v.   Brown    (1893),  McDonald    (1898),   122   Cal.   400; 

148  U.  S.  615;  37  Law  ed.,  582;  13  55   Pac.  139. 

Sup.    Ct.    R.    672;    Alexander    v.  "' Faren  v.  Sellars   (1887),  39 

Mandeville    (1889),    33   Ills.    App.  La.  Ann.  1011 ;  3  So.  363;  4  Amer. 

589;       Whitney,      etc.,      Co.      v.  St.  Rep.  256. 
O'Rourke    (1898),    68    Ills.    App. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


53 


And  in  a  case  under  the  Louisiana  Code,  a  contractor  en- 
gaged  with  a  rehgious  corporation  to  rebuild  a  cathedral, 
under  the  direction  and  superintendence  of  the  architect 
appointed  by  the  wardens ;  while  the  work  was  progressing, 
a  tower  fell,  in  consequence  of  defective  materials  or  con- 
struction, injuring  the  contractor's  servant.  This  servant 
recovered  damages  in  solido  against  the  contractor  and  the 
wardens.  ^"^^ 

Sec.  24.     Supervision  or  Approval  of  Engineer. 

As  in  many  other  subdivisions  of  the  general  rules  per- 
taining to  the  employment  of  servants  and  independent 
contractors,  there  is  a  conflict  of  judicial  opinion  as  to  when 
the  reservation  of  supervision  and  approval  by  the  em- 
ployer's engineer,  of  the  work  being  performed  by  an  em- 
ployee, will  render  the  latter  a  mere  servant.  Thus,  it  is 
held  that  a  stipulation  in  a  contract  for  constructing  or  re- 
pairing a  railway,  that  the  work  is  to  be  subject  to  the  rail- 
way company's  engineer's  approval  does  not  make  the  rail- 
way company  a  master  over  the  contractor.  ^^^  So,  where 
a  person  contracted  with  a  railroad  company  to  grade  a 
section  of  its  road,  the  entire  work  to  be  done  by  his  serv- 
ants and  laborers,  but  subject  to  the  approval  of  the  com- 
pany's chief  engineer,  and  under  the  direction  of  its 
assistant  engineer,  such  person  was  considered  an  indepen- 


*"  Camp  V.  Church  Wardens 
(1852),  7  La.  Ann.  321.  This  case 
was  distinguished  in  a  subsequent 
case  on  the  ground  that  the 
church  wardens  were  hable  by 
reason  of  having  reserved  control 
of  their  architect's  work.  Peyton 
V.  Richards  (1856),  11  La.  Ann. 
62.  "But  if  this  raised  the  re- 
lation    of     master     and     servant 


between  the  proprietor  and  con- 
tractor, then  how  could  a  judg- 
ment be  rendered  against  the 
contractors  who  had  done  no 
more  than  obey  orders,  the  work 
not  being  wrongful  per  sef" 
Thomp.  Neg.,  Sec.  662,  note  62. 

"'  Alabama,  etc..  Railroad  v. 
Martin  (1893).  100  Ala.  511;  14 
So.  401. 


54  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

dent   contractor.^^^      Where   a   railroad   company   employs 
a  professional  and  practical  bridge  builder  of  large  experi- 
ence, to  build  a  railway  bridge  across  a  river,  reserving  to 
its  chief  engineer  the  right  to  criticise  both  the  methods  of 
erection  and  the  workmanship,  but  not  to  direct  the  methods 
by  which  the  contractor  should  proceed,  the  railroad  com- 
pany is  not  liable  for  the  acts  of  the  contractor,  i'^'     In  an 
early  English  case,  it  was  laid  down  that  "the  proprietor 
will  not  be  responsible,  even  where  he  reserves  the  power, 
by  his  engineer,  to  direct  generally  tvhat  shall  be  done,  if 
the  injury  springs  from  the  manner  of  doing  it."  ^'^^     On 
the  other  hand,  in  a  recent  Federal  decision  the  employer  of 
a  contractor  for  the  erection  of  a  bridge  was  held  liable 
where  the  work  was  done  under  the  direct  supervision  of 
an  engineer  in  his  employ.  ^^^ 

A  contract  between  a  municipal  corporation  and  a  con- 
tractor for  the  construction  of  a  sewer,  containing  the  pro- 
vision :  "All  work  to  be  commenced  and  carried  on  at  such 
times  and  in  such  places  and  in  such  manner  as  the  engineer 
shall  direct,"  and  requiring  the  contractor  to  dismiss  from, 
his  employment  all  incompetent  and  unfaithful  persons,  was 

"•'Rogers  v.  Florence  Railroad  (1903),  122  Fed.  378;  58  C.  C.  A. 

(1889),    31    S.    C.    378;    9    S.    E.  466;    65   L.   R.    A.    620;    16   Am. 

1059;  39  Amer.  &  Eng.  Rail.  Cas.  Neg.    Rep.    615,    n.      In    an    Iowa 

348.     That   the   chief   engineer   is  case,    it    was    concluded    that    a 

conclusively     presumed     to     have  grading  contractor  was  a  servant 

control  of  the  work  of  grading  a  of  a  railroad  company  and  not  an 

railway,    see   Alabama,   etc.,   Rail-  independent   contractor  where   he 

road    V.'    Coskry    (1890),    92    Ala.  furnished  his  own  tools,  but  per- 

254;  9  So.  202.  formed   the    work   under   the   di- 

"'  Bibb  v.  Norfolk,  etc.,  Rail-  rection  and  to  the  satisfaction  of 

ROAD  (1891),  87  Va.  711;  14  S.  E.  an  engineer  having  power  to  ter- 

163;  47  Amer.  &  Eng.  Rail.  Cas.  minate  the  contract  whenever  he 

551_'  deemed    it    for    the    best    interest 

"*  Steele    v.     Southeastern  of  the  railroad  company.     Parrott 

Railroad    Co.    (1855),    16    C.    B.  v.  Chicago,  etc.,  Railroad   (1905), 


550. 
'**  Salliotte  v.  King,  etc.,  Co. 


127  Iowa,  419;   103  N.  W.  352. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


55 


held  not  to  reduce  the  contractor  to  the  grade  of  a  servant 
of  the  city  so  as  to  make  it  answerable  for  his  negli- 
gence. ^^^  In  an  Indiana  case  where  a  city  was  constructing 
a  water  pipe  trench  and  a  laborer  employed  under  the  di- 
rection of  the  city's  inspector  and  superintendent  was  as- 
signed to  the  excavation  of  a  section  of  the  trench,  but  he 
had  no  authority  or  discretion  as  to  his  work,  he  was  held 
to  be  a  servant  and  not  an  independent  contractor.^^^  A 
subcontractor  of  an  improvement  company,  which  has  con- 
tracted with  a  railroad  company  to  build  and  equip  its  line 
of  road,  the  work  to  be  done  subject  to  the  approval  of 
the  railroad  company's  chief  engineer  is  an  independent 
contractor.  ^°^ 


'"Erie  v.  Caulkins  (1877),  85 
Pa.  St.  247;  27  Am.  Dec.  642.  In 
a  late  Illinois  case  where  a  city's 
contract  for  the  construction  of  a 
tunnel  provided  that  all  labor  per- 
formed should  be  subject  to  the 
inspection  of  the  commissioners 
of  public  works,  it  was  held  that 
the  city  was  liable  for  the  negli- 
gence of  an  independent  con- 
tractor in  doing  the  work.  Chi- 
cago V.  MuRDOCK  (1904),  212  Ills. 
9;  72  N.  E.  46;  103  Amer.  St. 
Rep.  221.  See.  post.  Chap.  V., 
Sees.  139-146.  One  whose  bid  for 
a  street  improvement  has  been  ac- 
cepted and  who  has  in  part  per- 
formed the  work  under  the 
direction  of  the  city's  engineer 
and  street  committee,  does  not  be- 
come an  independent  contractor 
so  as  to  exempt  the  city  from  lia- 
bility for  an  accident  sustained 
because  of  a  road  obstruction, 
although  thereafter  a  formal  in- 
dependent contract  is  tendered  to 


him  for  signature.  Hookey  v. 
Oakdale  (1895),  29  Pitts.  L.  J. 
(N.  S.),  453. 

"^  Fort  Wayne  v.  Christie 
(1901),  156  Ind.  172;  59  N.  E. 
385. 

""Alabama,  etc.,  Railroad  v. 
Martin  (1893),  100  Ala.  511;  14 
So.  401.  Where  such  a  contract 
specified  that  the  grounds  should 
be  cleared  of  all  perishable  ma- 
terials, which  should  be  removed 
or  burned,  as  the  engineer  of  the 
company  might  direct,  and  the 
engineer  directed  the  burning  of 
a  pile  of  brush,  but  it  was  so  neg- 
ligently done  by  a  subcontractor 
of  the  principal  contractor  that 
damage  ensued  to  an  adjacent 
owner,  the  company  was  held  not 
liable.  Callahan  v.  Burlington, 
etc..  Railroad  (1876),  23  Iowa, 
562.  Cf.  Wright  v.  Holbrook 
(1872).  52  N.  H.  120;  13  Amer. 
Rep.  12. 


56 


INDEPENDENT    CONTRxVCTORS    AND    THEIR    LIABILITY. 


Sec.  25.     Purpose  of  Retaining  Control. 

If  these  provisions  (reserving  right  of  supervision  and 
approval)  are  for  the  purpose  of  securing  faithful  com- 
pliance with  the  specifications  on  the  part  of  the  contractor, 
the  relation  remains  that  of  employer  and  independent  con- 
tractor, though  the  stipulations  give  the  employer  the  right 
to  reject  work  or  material  which  does  not  conform  to  the 
specifications,  or  to  stop  the  work.  ^^'^  The  proprietor  is 
not  liable  merely  because  he  retains  a  supervision  of  the 
work  simply  for  the  purpose  of  securing  certain  results.  ^^^ 
A  learned  annotator  has  lately  said :  "Where  the  substan- 
tial effect  of  the  evidence  is  that  the  person  employed  was 
engaged  in  some  occupation  which  might,  in  a  reasonable 
sense,  he  described  as  distinct,  and  that  he  undertook  to 
execute  a  particular  piece  of  work  for  a  specified  price, 
calculated  with  reference  to  the  quantity  of  work  actually 
performed,  it  is,  as  a  general  rule,  an  inference,  in  point 
of  law,  that  the  employer  did  not  intend  to  exercise  any 
control  over  the  work  while  it  was  in  progress  but  merely 
reserved  the  right  to  reject  the  results  produced  thereby."^^-^ 


^^  Stephen  v.  Commissioners 
(1876),  3  Sc.  Sess.  Cases,  4th 
series,  535,  542;  Vosbeck  v.  Kel- 
logg (1899),  78  Minn.  176;  80  N. 
W.'  957;  Blumb  v.  City  of  Kansas 
(1884),  84  Mo.  112;  54  Amer. 
Rep.  87. 

'"  Bibb  v.  Norfolk,  etc.,  R.ml- 
ROAD  (1891),  87  Va.  711;  14  S.  E. 
163;  47  Amer.  &  Eng.  Rail.  Cas. 
651.  "The  mere  fact  that  the  pro- 
prietor retains  a  general  super- 
vision over  the  work  for  the 
purpose  of  satisfying  himself  that 
the    contractor     carries     out    the 


stipulations  of  his  contract,  does 
not  make  him  responsible  for 
wrongs  done  to  third  persons  in 
the  prosecution  of  the  work." 
Thomp.  Neg.,  Sec.  660.  A  city 
is  not  liable  where  the  provisions 
of  the  contract  with  the  contractor 
relate  to  results  and  not  to  the 
methods  employed.  Foster  v.  Chi- 
cago (1902),  197  Ills.  264;  64  N. 
E.  322. 

"^Mr.  C.  B.  Labatt,  in  note  to 
Richmond  v.  Sitterding  (1903, 
Va.),  65  L.  R.  A.  461. 


WHO  ARE  INDEPENDENT  CONTRACTORS. 


57 


Sec.  26.     Surrendering  or  Retaining  Control  of  Premises. 

The  authority  last  quoted  adds:  "With  respect  to  that 
large  class  of  cases  in  which  the  stipulated  work  is  to  be 
done  on  the  premises  of  the  contractor  (contractee?)  it 
may  be  laid  down  as  a  general  rule  that,  whenever  it  is 
understood  or  expressly  provided,  that  the  possession  and 
control  of  those  premises  are  to  be  surrendered  to  the 
contractor  while  the  work  is  in  progress,  the  independence 
of  the  contract  should  be  inferred,  as  a  matter  of  law, 
unless  there  is  some  specific  evidence  which  points  to  the 
opposite  conclusion."  ^''"^  Thus,  testimony  to  the  effect  that 
one  employed  to  erect  a  building  was  given  possession  of 
the  premises  in  question  will  be  disregarded  if  it  appears 
from  other  facts  that  he  was  acting  as  the  employer's  super- 
intendent, and  merely  occupied  the  premises  as  mechanics 
usually  do  when  making  improvements.  ^"'  Further,  it  is 
clear  that  an  employee's  torts  "can  not  be  imputed  to  the 
employer  on  the  mere  ground  that,  while  the  work  was  in 
progress,  the  latter  retained,  with  respect  to  his  premises, 
that  ultimate  right  of  control  which  is  an  inseparable  inci- 
dent of  proprietorship."  ^^^ 


^  Note  to  Richmond  v.  Sitter- 
ding  (1903,  Va.),  65  L.  R.  A.  502, 
citing  cases,  inter  alia  Byrnes  v. 
Western  (1896),  17  New  South 
Wales,  L.  R.,  80;  Hawver  v. 
Whalen  (1892),  49  Ohio  St.  69; 
29  N.  E.  1049;  14  L.  R.  A.  828. 
In  order  that  the  employer  may 
escape  liability  on  the  ground  of 
his  having  surrendered  possession 
of  his  premises,  it  is  merely  nec- 
essary to  show  that  the  possession 
given  was  such  as  would  enable 
the  contractor  to  carry  out  the 
contract;  such  possession  need  not 
be  exclusive.     Id.,  citing  cases. 


'-•Samyn  v.  McClosky  (1853), 
2  Ohio  St.  536. 

^^  .Note  to  Richmond  v.  Sitter- 
ding,  supra,  at  p.  504.  "In  Illi- 
nois the  doctrine  seems  to  have 
been  adopted  that  this  situation  is 
incompatible  with  any  other  con- 
clusion than  that  the  person  em- 
ployed was  a  servant."  Id., 
citing  Glickauf  v.  Maurer 
(1874),  75  Ills.  289;  20  Amer. 
Rep.  238;  Bernaur  v.  Hartman, 
etc.,  Co.  (1889),  33  Ills.  App.  491. 
"The  more  correct  theory,  how- 
ever, would  seem  to  be  that  juch 
evidence    constitutes    at    the    very 


58 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


Sec.  27.     Construction  of  Contract  of  Employment. 

Whether  the  employer  retains  such  control  over  the 
work  to  be  done,  and  the  manner  of  doing  it,  as  to  render 
himself  responsible  for  injuries  occasioned  by  the  negli- 
gence of  the  employee  (or  contractor)  in  the  performance 
of  the  work  depends  upon  the  construction  to  be  given  to 
the  contract.  ^"^  "It  is  apparent  from  what  has  been  said, 
that  whether  the  relation   in  a  particular  case  is  that  of 


most  an  element  to  be  considored 
by  the  jury.    There  is  no  such  in- 
timate   or     invariable    connection 
between  the  power  of  controlling 
the   details   of   the   work  and   the 
power  of  controlling  the  premises 
on  which  the   work  is  done,  that 
the   exercise   of   the   latter  power 
necessarily  implies  the  exercise  of 
the    former    power    as    well.      It 
seems   certain    at   all   events   that, 
in  cases  where  only  a  porrion  of 
the    premises    is    affected    by    the 
performance  of  the  work,  the  fact 
that  the  employer  retained  cDntrol 
over  them  is  inconclusive,   if  not 
wholly      immaterial."        Note     to 
Richmond    v.    Sitterding,    supra, 
p.  504,  citing  Boomer  v.  Wilbur 
(1900),   176  Mass.  482;  57  N.  E. 
1004;  53  L.  R.  A.  172;  8  Am.  Neg. 
Rep.     246;     Mumby     v.     Bowden 
0889),  25  Fla.  454;   6   So.   453; 
Louthan    v.    Hewes     (1902).    138 
Cal.   116;   70   Pac.   1065;    16   Am. 
Neg.  Rep.  613,  n.    Defendant  com- 
pany owning  standing  timber  con- 
tracted with  F.  to  cut  and  remove 
same,  and  agreed  to  furnish  him 
a    locomotive,    cars,    horses,    etc., 
■  and  to  pay  him  at  certain   rates 
for  all  timber  logged.     F.  was  to 
have  full  control  over  the  cutting 


and  hauling  and  defendant  was  to 
have  no  control,  and  F.  was  to 
"do  said  work  in  a  good,  work- 
manlike manner  as  an  independent 
contractor."  F.  shortly  began  cut- 
ting the  timber.  Plaintifif,  aged 
nine,  and  his  father  lived  on  land 
whereon  trees  were  being  cut. 
The  father  sent  plaintiff  along  a 
path  to  a  spring  to  get  water  and 
while  on  the  way  she  was  struck 
by  a  tree  felled  by  the  hands 
sawing  trees.  "Assuming  that  the 
contract  was  made  in  good  faith 
and  was  not  a  mere  colorable  de- 
vice, resorted  to  for  the  purpose 
of  avoiding  responsibility  for  F.'s 
acts,  we  are  of  the  opinion  that  it 
constituted  F.  an  independent  con- 
tractor." Young  v.  Fosburgh 
LuMRER  Co.  (1908).  147  N.  C.  26; 
60  S.  E.  654;  16  L.  R.  A.  (N.  S.), 
255,  citing  Craft  v.  Albemarle,  etc., 
Co.  (1903),  132  N.  C.  151 ;  43  S.  E. 
597;  30  Am.  &  Eng.  Ry.  Cas.  (N. 
S.).  84;  16  Amer.  Neg.  Rep. 
615,  n. 

"«HufT.  Agcy.,  2d  ed..  Sec.  218, 
citing  LiNNEHAN  V.  Rollins 
(1884),  137  Mass.  123;  50  Amer. 
Rep.  287;  Burd.  Cas.  Torts,  400; 
15  Am.  Neg.  Cas.  666,  n. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


59 


employer  and  independent  contractor,  or  of  master  and 
servant,  depends  on  the  terms  of  the  contract,  in  the  absence 
of  legislation."  ^^^  Whether  such  full  control  is  reserved 
as  will  constitute  the  employer  a  master,  it  has  been  held, 
must  depend  in  each  case  upon  a  just  interpretation  of  the 
contract  itself,  as  shown  in  the  decisions  cited  herein.  ^"^ 

The  judges  themselves  do  not  always  agree  inter  se. 
Thus,  in  a  contract  for  laying  gas  pipe,  two  judges  held 
there  was  nothing  from  which  the  relation  of  master  and 
servant  could  be  gathered,  while  a  third  judge  dissented 
on  the  ground  that  certain  provisions  made  it  plain  that 
the  defendant's  inspector  was  to  have  full  control  over  the 
means  adopted  for  the  protection  of  the  gas  and  water 
pipes  out  of  which  the  accident  occurred.  ^"-     A  provision 


^■"Burd.  Torts,  p.  134,  citing 
Cargill  V.  Duflfy  (1903),  123  Fed. 
721. 

"'See  Erie  v.  Caulkins  (1877;, 
85  Pa.  St.  250;  27  Amer.  Rep. 
642,  per  Gordon,  J.  Contra,  q.  v., 
Railroad  Co.  v.  Hanning  (1872). 
15  Wall.  649;  7  Am.  Neg.  Cas. 
309.  Where  an  extension  of  the 
work  is  ordered  bj^  the  city  engi- 
neer, under  the  terms  of  a  con- 
tract, the  contractor  in  executing 
such  extension  will  be  deemed  an 
independent  contractor,  if  the 
terms  of  the  original  contract 
make  him  so.  Charlock  v.  Freel 
(1891).  125  N.  Y.  357;  34  N.  Y 
St.  R.  971:  26  N.  E.  262.  A 
mine  owner  is  not  relieved  of  lia- 
bility for  injuries  to  employees 
through  the  incompetency  of  the 
engineer,  by  a  lease  of  the  mine, 
which  is  shown  to  be  nothing  but 
a  form  adopted  by  the  owner  to 
carry  on  its  business  in  the  name 


of  another,  the  owner  still  having 
full  control  and  charge  of  the 
mine  and  work  therein.  Consoli- 
dated, etc.,  Co.  V.  Seniger  (1899), 
179  Ills.  370;  53  N.  E.  733.  It  is 
also  immaterial  whether  the  work 
contracted  for  be  done  by  the 
contractor  himself,  his  servants 
or  a  subcontractor  and  his  em- 
ployees ;  the  terms  of  the  contract 
are  decisive  of  the  question 
whether  the  relation  of  contractor 
or  servant  is  created.  ]\1cH.\rge 
V.  Newcomer  (1907),  117  Tenn. 
595;  100  S.  W.  700;  9  L.  R.  A. 
(N.  S.),  298. 

""  Hardaker  v.  Idle  District,  etc. 
(1896).  1  Q.  B.  335.  Compare 
Norwalk,  etc.,  Co.  v.  Norwalk 
(1893),  63  Conn.  495;  28  Atl.  32; 
Harding  v.  Boston  (1895),  163 
Mass.  14;  39  N.  E.  411.  "The 
rationale  of  the  cases" — holding 
that  the  provision  that  the  work 
or    certain    parts    of    it    shall    be 


60 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


in  the  employee's  contract  "that  he  shall  not  use  the  em- 
ployer's name  in  any  manner  whereby  any  one  may  be  led 
to  believe  that  the  employer  is  responsible  for  his  acts," 
was  held  by  the  United  States  Supreme  Court  not  to  relieve 
the  employer  at  all  of  liability  for  his  negligence  if  in  fact 
the  employee  was  a  servant.  ^*^^ 

Though  payment  for  work  "by  the  job"  and  the  right  and 
power  of  the  person  doing  the  work  to  employ  assistants, 
to  be  paid  by  himself,  are  circumstances  tending  to  prove 
the  relation  of  contractor  and  contractee,  and  so  make  him 
an  independent  contractor,  they  are  not  conclusive  and  must 
yield,  if  it  appears  that  he  is  merely  working  under  a  gen- 
eral employment,  having  no  dominion  or  control  over  the 
premises,  subject  at  all  times  to  the  employer's  orders  as 
to  when  and  how  he  shall  work  and  the  results  to  be  accom- 
plished and  may  be  discharged  at  any  time.  Under  such 
circumstances  the  relation  of  master  and  servant  exists.  ^^^ 
It  is  clear  that  "one  does  not  become  an  independent  contrac- 
tor simply  because  the  writing  so  styles  him.  Whether  he  is 
one  depends  upon  the  terms  upon  which  he,  in  truth,  enters 
upon  (the  work  he  is  to  perform).  If  as  a  fact,  notwith- 
standing the  language  of  the  writing,  the  defendant  (em- 
ployer)  exercises  a  control  over  him  in  the  selection  and 


done  under  the  direction  of  the 
emplojer  or  his  agent  does  not 
alone  destroy  the  independent  na- 
ture of  the  contract — ''is  that  the 
question  whether  the  person  em- 
ployed was  an  independent  con- 
tractor or  a  mere  servant  is  not 
to  be  determined  by  the  retention 
of  a  certain  kind  or  degree  of 
supervision  by  the  employer,  but 
by  the  contract  as  a  whole,  by  its 
spirit  and  essence,  and  not  by  the 
phraseology  of  a  single  sentence 
or  paragraph.    If  the  result  of  ap- 


plying this  test  is  to  render  it 
reasonably  certain  that  the  inten- 
tion of  the  parties  was  to  enter 
into  an  independent  contract,  the 
words  above  specified  will  be  con- 
strued as  being  (such  as  relate) 
to  the  results  contemplated  and 
not  to  the  methods  employed." 
Exhaustive  note  to  Richmond  v. 
SiTTERDiNG,  supra,  p.  480. 

^"■'  Singer  Manufacturing  Co. 
V.  Rahn  (1889),  132  U.  S.  518; 
Hufif.  Cas.  Agcy.,  9. 

"*Knicely   v.    West   Virginia, 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


61 


employment  of  the  laborers,  if  defendant  pays  them  and 
directs  the  manner  in  which  they  perform  the  service ;  in 
other  words,  if  the  writing  does  not  truthfully  set  forth  the 
agreement  between  the  employee  and  defendant,  and  the 
jury  should  so  find,  then  he  is  not  an  independent 
contractor."  ^^^ 


Sec.  28.     Construction:     Question  for  Court. 

"What  constitutes  an  independent  employment  so  as  to 
make  the  person  engaged  in  the  employment  an  independent 
contractor  within  the  meaning  of  the  rule  under  considera- 
tion, is  a  question  of  law  for  the  court,  and  not  a  question 
of  fact  for  the  jury;  but,  as  in  other  cases,  subject  to  the 
rule  that  the  jury  are  to  determine  the  facts  on  which  the 
decision  of  the  question  of  law  is  to  be  made."  ^^^  The 
question  depends  upon  the  terms  of  the  contract,  and  when 
the  contract  is  in  writing  it  is  one  of  law  for  the  court.  ^"^^ 
Thus,  the  relation  created  by  a  written  contract  for  the 


ETC.,  Co.  (1908,  W.  Va.),  61  S.  E. 
811;  17L.R.A.(N.S.),  370,  sylla- 
bus by  court,  citing  Northern,  etc., 
R.  V.  Peterson  (1896),  162  U.  S. 
346;  Jackson  v.  Norfolk,  etc.,  R. 
(1897),  43  W.  Va.  380;  27  S.  E. 
278;  31  S.  E.  258;  46  L.  R.  A. 
337.  Cf.,  as  to  volunteers,  Penn- 
sylvania Co.  v.  Gallagher 
(1884),  40  Ohio  St.  637;  48  Amer. 
Rep.  689;  Saunders  v.  Coleridge 
(1896,  D.  C),  72  Fed.  676;  Ewan 
v.  Lippincott  (1885),  47  N.  J.  L. 
192;  54  Amer.  Rep.  148.  "In  the 
law  of  liability  for  negligence,  in- 
dependency of  contract  and  serv- 
ancy  l)ear  to  each  the  relation  of 
opposition ;  they  are  incompatible ; 
where    one   exists    the    other    can 


not."  Knicely  v.  West  Virginia, 
etc.,  R.,  supra. 

'""Young  v.  Fosburgh  Lumber 
Co.  (1908,  N.  C),  60  S.  E.  654; 
16  L.  R.  A.  (N.  S.),  255. 

"^  Thomps.  Neg.,  Sec.  640,  citing 
Emmerson  v.  Fay  (1896),  94  Va. 
60;  26  S.  E.  386;  also  cited  in 
Barrows   Neg.,    161. 

"'  Hughbanks  v.  Boston,  etc.,  Co. 
(1894),  94  Iowa,  267;  60  N.  W. 
640;  14  Am.  Neg.  Cas.  592,  n; 
Vosbeck  v.  Kellogg  (1899),  78 
Minn.  176,  181;  80  N.  W.  957; 
Allen  v.  Willard  (1868),  57  Pa. 
St.  374,  382;  Singer  Manufac- 
turing Co.  V.  Rahn  (1889),  132 
U.  S.  518;  10  Sup.  Ct.  176;  Huff. 
Cas.  Agcy.,  9.  "His  Honor  left 
the   question   whether   F.   was  an 


62 


INDEPENDENT    CONTRACTORS    AND    THEIR    LLVBILITY. 


construction  work  on  a  railroad  track,  between  the  parties 
thereto,  is  exclusively  a  question  for  the  court. ^*'^  Not 
alone  if  the  contract  is  in  writings  but  even  though  it  is 
oral,  if  but  one  inference  can  be  drawn  from  the  evidence, 
the  question  whether  the  relation  is  that  of  employer  and 
independent  contractor  or  that  of  master  and  servant  is 
presented  for  the  court.  ^"•*  But  it  can  not  be  said,  as  a 
matter  of  law,  that  a  member  of  a  firm  of  transfer  agents, 
permitted  by  a  railroad  company  to  check  baggage  on  its 
trains,  is  its  employee  under  the  Kentucky  statute  relating 
to  recovery  of  damages  in  fatal  accidents.  ^'" 

Sec.  29.     Constmction :  Question  for  Jury. 

.It   is    frequently  asserted   that   whether   the   relation  of 
master  and  servant  exists  in  a  given  case  is  usually  a  ques- 


independent  contractor  to  the 
jury.  In  one  aspect  of  the  ques- 
tion this  was  error.  The  con- 
struction of  the  language  of  the 
(written)  contract  being  free  from 
ambiguit}',  was  for  the  court." 
Young  v.  Fosburgh  Lumber  Co. 
(1908,  N.  C),  60  S.  E.  654;  16 
L.  R.  A.   (N.  S.),  255. 

"^GooD  V.  Johnson  (1907),  38 
Colo.  440;  88  Pac.  439;  8  L.  R. 
A.  (N.  S.),  896,  in  which  the  rela- 
tion in  question  was  between  a 
contractor  and  a  subcontractor. 

"''Sadler  v.  Henlock  (1855),  4 
El.  &  Bl.  570 ;  Adams  Express  Co. 
V.  Schofield  (1901),  111  Ky.  8;  32 
S.  W.  903;  Leavitt  v.  Bangor, 
ETC.,  Railroad  (1897).  89  Me. 
509;  36  Atl.  998;  36  L.  R.  A.  382; 

7  Am.  &  Eng.  Ry.  Cas.  354;  1 
Am.  Neg.  Rep.  605;  Boomer  v. 
Wilbur  (1899),  176  Mass.  482; 
57  N.  E.  1004;  53  L.  R.  A.  172; 

8  Am.    Neg.    Rep.    246;    Vosbeck 


V.  Kellogg,  supra;  Allen  v.  Wil- 
lard,  supra;  Sanford  v.  Paw- 
tucket,  ETC.,  Railroad  (1896),  19 
R.  I.  537 ;  35  Atl.  67 ;  33  L.  R.  A. 
564;  4  Amer.  &  Eng.  Railroad 
Cas.  (N.  S.),  318;  Singer  Manu- 
facturing Co.  V.  Rahn,  supra. 
The  relation  of  employer  and  in- 
dependent contractor  was  held  to 
be  inferable  as  a  matter  of  law. 
where  the  defendant  had  leased 
to  H.  certain  lands  to  work  on 
shares  and  agreed  to  pay  H.  so 
much  per  acre  for  clearing  what- 
ever part  he  chose  to  clear.  Fer- 
guson V.  HuBBELL  (1884),  97  N. 
Y.  507;  49  Amer.  Rep.  544;  such 
persons  are  not  the  landlord's 
servants  or  agents.  See,  also, 
Duncan  v.  x^nderson  (1876),  56 
Ga.  398. 

""Mefiford  v.  Louisville,  etc.. 
Railroad  (1892),  14  Ky.  L.  Rep. 
327;  20  S.  W.  263. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


63 


tion  of  fact.  ^'^  Where  the  contract  is  oral  and  the  evi- 
dence is  conflicting,  or  where  the  written  contract  has  be- 
come mochfied  by  the  practice  under  it,  the  question  as  to 
what  relation  exists  is  for  the  jury  under  proper  instruc- 
tions. ''-     If  the  contract  is  oral,  and  if  more  than  one  in- 


^•^  Bernstein  v.  Roth  C1893),  145 
Ills.  189;  34  N.  E.  37;  Sacher  v. 
VVaudell  (1903),  98  Md.  43;  56 
Atl.  399;  103  Amer.  St.  Rep.  374. 
Retaining  control  of  premises 
may  be  a  matter  of  fact  for  the 
jury;  see  ante.  Sec.  26.  Whether 
in  the  case  at  bar  the  licensee 
company  had  created  the  alleged 
nuisance  (a  defective  railway 
bridge  on  a  track  built  In'  the 
licensee  company  to  connect  its 
system  with  defendant's)  and  had 
sole  possession  and  use  of  that 
track  thenceforward  until  the  oc- 
currence of  the  injury  complained 
of,  was  held  to  be  a  question  of 
fact  for  the  jury.  Gwathney  v. 
Little  Miami  Railroad  (1861),  12 
Ohio  St.  92.     Cf.  Regina  v.  Gibbs 

(1855).  6  Cox  C.  C.  .455.  So. 
also,  as  to  whether  control  was 
actually  exercised  over  the  em- 
ployee is  primarily  for  the  jur>'; 
see  post.  Sec.  — . 

"-  Overhouscr  v.  American,  etc., 
Co.  (1902),  118  Iowa,  417;  92  N. 
W.  74;  Driscoll  v.  Towle  (1902), 

181    Mass.    416;    63    N.    E.    922; 

Rait    V.    New    England,   etc.,    Co. 

(1896).  66   Minn.   76;   68   N.   W. 

729;   Klages  v.   Gillette,   etc.,   Co. 

(1902).  86  Minn.  458;  90  N.  W. 

1116;  Gayle  v.  Missouri,  etc.,  Co. 

(1903).    177   Mo.   427;    76   S.   W. 

987;    Howard   v.   Ludwig    (1902), 

171    N.    Y.    507;    64    S.    E.    172; 


Wallace    v.    Southern,    etc.,    Co. 
(1897),    91    Tex.    18;    40    S.    W. 
399;  Emmerson  v.  Fay  (1896),  94 
Va.  60 ;  26  S.  E.  386.     The  ques- 
tion  whether  the  tort-feasor  was 
an    independent    contractor    or    a 
servant,    is    for    the    jury    where 
there    is    testimony    on    one    side 
that  he  supplied  his  own  men  and 
horses,    and    was    hired    by    the 
hour    to    do    all    of    defendant's 
trucking,  and  on  the  other  that  he 
v.as    under    their    foreman's    con- 
trol,   subject    to    his    orders    and 
direction   both  as   to   what   to   do 
and   how   to   do   it,  and   that  the 
foreman    had    authority    over    his 
men.     Brophy  v.  Bartlett   (1888). 
1  Silv.  Ct.  App.  475.  reversing  37 
Hun   (N.  Y.),  642.     Whether  one 
who  is   supervising  a   department 
of  a   factory   is   a   servant  of  the 
owner    or    an    independent    con- 
tractor, is  a  question  for  the  jury 
where    he    testifies    that    he    was 
paid    by    the    gross    for    articles 
turned  out  of  his  department  and 
paid  his   subordinates   out  of  the 
sums     thus     received,     but     also 
states  that  he  was  only  the  fore- 
man    for     that     department     and 
under  the  superintendent.    Latorre 
V.  Central,  etc.,  Co.  (1896).  9  App. 
Div.  (N.  Y.).  145;  41  N.  Y.  Supp. 
99.      Cf..    generally,    Wallace    v. 
Southern,  etc.,  Co.  (1897).  91  Tex. 
18:  40  S.  W.  399. 


64 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


ference  can  fairly  be  drawn  from  the  evidence,  the  question 
should  go  to  the  jury  whether  the  relation  is  that  of  em- 
ployer and  independent  contractor  or  that  of  master  and 
servant.  ^^^  If,  for  example,  the  evidence  does  not  show 
clearly  that  A's  servant  has  been  put,  for  the  time  being, 
under  the  control  of  B.,  a  question  of  fact  for  the  jury,  as 
to  whether  A.  or  B.  is  the  master,  seems  to  be  presented.  ^'^* 
In  an  English  case,  the  question  whether  the  defendant  em- 
ployer was  liable  was  held  properly  submitted  to  the  jury 
in  the  case  of  unloading  a  ship.  ^^^  Where  the  contract, 
as  related  by  witnesses,  is  so  incomplete  as  to  lead  to  the 


"^  Burd.  Torts,  135,  citing  cases 
cited  in  last  preceding  note.  In 
Button  V.  Amesbury  National 
Bank  (1902),  181  Mass.  154,  62 
N.  E.  405,  the  majority  of  the 
court  thought  but  one  inference 
was  warrantable  while  one  judge 
thought  two  could  be  drawn.  See 
further,  cases  cited  in  Sec.  27, 
note  162,  supra. 

^'*  Howard  v.  Ludwig  (1902), 
171  N.  Y.  507,  64  N.  E.  172,  in 
which  the  minority  of  the  court 
thought  the  evidence  did  not 
warrant  the  inference  that  the 
wrongdoer  was  the  servant  of  the 
defendant,  but  showed  clearly  that 
he  remained  the  servant  of  his 
general  master,  the  Univ.  Express 
Company.  See,  also,  Ward  v. 
New  England  Fibre  Co.  (1891), 
154  Mass.  419;  28  N.  E.  299.  In 
a  case  in  which  the  removal  of 
lateral  support  damaged  a  build- 
ing, it  was  held  properly  refused 
to  hold  upon  the  evidence  that 
the  defendants,  the  principal  con- 
tractors for  the  erection  of  the 
building,  were  not  liable  by  rea- 


son of  their  arrangement  with  one 
K.  as  to  the  excavations,  where 
K.  was  to  be  paid  by  the  yard 
for  excavations  he  made,  it  be- 
ing his  duty  to  follow  defend- 
ants' directions  from  time  to  time 
as  to  where  and  when  to  dig, 
defendants  supervising  the  work 
and  another  employee  giving  di- 
rections to  the  men  there.  Hart 
V.  Ryan  (1889),  3  Silv.  Sup.  Ct. 
(N.  Y.),415;6N.  Y.  Supp.921.  In 
Pennsylvania  the  character  of  the 
relation  between  a  stevedore  and 
his  emplo3'er  has  been  held  to  be 
one  for  the  jury  in  two  cases 
where  the  question  was  whether 
the  crew  of  the  ship  and  the 
stevedore's  workmen  were  co- 
servants.  MuLLAN  V.  Philadel- 
phia, ETC.,  Co.  (1875),  78  Pa.  25; 
21  Amer.  Rep.  2;  Hass  v.  Phila- 
delphia, etc.,  Co.  (1879),  88  Pa. 
269;  32  Amcr.  Rep.  462. 

""Ruth  V.  Surrey  Dock  Co. 
(1891),  8  Times  L.  R.  116.  But 
see  Charles  v.  Taylor  (1878),  L. 
R.,  3  C.  P.  D.  492. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


65 


conclusion  that  it  was  a  mere  subterfuge  to  avoid  liability, 
or  an  afterthought  on  the  part  of  the  witness,  it  is  properly 
submitted  to  the  jury.  ^"^^ 


Sec.  30.     Identity  of  Employer  and  Independent  Contractor. 

A  recent  decision  in  the  plaintiff's  favor  was  based  partly 
on  the  ground  that  the  injury  was  due  to  the  negligence 
of  a  construction  company  expressly  organized  to  do  the 
work,  and  it  and  the. defendant  company  employing  it  were 
controlled  and  managed  by  the  same  persons.  ^""  The  fact 
that  a  boss  cartman,  under  contract  to  do  a  firm's  trucking, 
being  at  the  same  time  engaged  in  similar  work  for  others, 
owning  his  own  wagons  and  teams  and  employing  his  own 
drivers,  has  a  place  of  business  on  such  firm's  premises, 
does  not  affect  his  relationship  as  an  independent 
contractor.  ^~'^ 


Sec.  31.    Whose  Servant  the  Wrongdoer  Is. 

If  in  the  transaction  A.   sustains  the   relation  of  inde- 
pendent contractor  to  B.  so  that  the  latter's  right  of  control 


"'Johnson  v.  Great  Northern. 
etc.,  Co.  CI 908),  48  Wash.  325; 
93  Pac.  516.  Cf.  DeCola  v.  Cowan 
(1906),  102  Md.  551;  62  Atl.  1026. 

^"  Chicago,  etc.,  Co.  v.  Myers 
(1897),  168  Ills.  139;  48  N.  E.  66. 
Commenting  on  this,  one  writer 
says :  "There  is  apparently  no 
other  instance  of  the  application 
of  such  a  doctrine.  But  its  jus- 
tice and  reasonableness  are  so 
manifest  and  it  supplies  such  a 
simple  and  direct  method  of  pre- 
venting the  avoidance  of  liability 
by  the  sunterfuge  of  creating 
'dummy'     corporations     that     the 


present  writer  has  no  hesitation 
in  expressing  the  hope  that  it  will 
meet  with  general  acceptance." 
C.  B.  Labatt,  Esq.,  in  note  to 
Richmond  v.  Sitterding  (1903, 
Va.),  in  65  L.  R.  A.  508.  See, 
also.  Sec.  167,  post. 

'•'Moore  v.  Stainton  (1903),  80 
App.  Div.  295;  SO  N.  Y.  Supp. 
214;  177  N.  Y.  581;  59  N.  E. 
1127;  to  the  same  effect,  Chicago, 
etc.,  Co.  v.  Campbell  (1904),  116 
Ills.  App.  322;  Cole  v.  Louisiana, 
etc.,  Co.  (190S),  121  La.  771;  46 
So.  801. 


66 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


is  limited  to  indicating  the  work  to  be  done  and  does  not 
extend  to  directing  how  it  shall  be  done,  then  A.  and  not 
B.  is  answerable  for  the  servant's  torts.  ^''-^  "The  true 
principle  of  law  is  that  if  I  lend  my  servant  to  a  contractor, 
who  is  to  have  the  sole  control  and  superintendence  of  the 
work  contracted  for,  the  independent  contractor  is  alone 
liable  for  any  wrongful  act  done  by  the  servant  while  so 
employed.  The  servant  is  doing,  not  my  work,  but  the 
work  of  the  independent  contractor."  ^'^^ 


'"Jones  V.   Mayor,  etc.    (1885j, 
14  Q.  B.  D.  890;  54  L.  J.,  Q.  B,. 
345;  Cameron  v.  Nystrom  (1893), 
A.   C.   308;   62  L.  J.,   P.   C,  85; 
Ste\v.\rt  v.  California,  etc.,  Co. 
(1900),  131  Cal.  125;  63  Pac.  177; 
Burd.    Cas.   412;    Wood    v.    Col)b 
(1866),    13    Allen,    95    Mass.    58; 
Murray   v.    Dwight    (1900),    161 
N.  Y.  301 ;  55  N.  E.  901 ;  48  L.  R, 
A.    673.      The    dissenting    opinion 
in  the  case  last  cited  is  based  on 
the  view  that  the  servant  of  the 
contractor  was  subject  to  the  con- 
trol of  the  defendant.     Cf.,  Quinn 
V.   Complete   Electric   Co.    (1891). 
46  Fed.  506.     "It  may  be  observed, 
however,  that  there  is  a  class  of 
cases   in   which,   although   it   may 
be   apparent   that  the  person   em- 
ployed   was    himself    an    indepen- 
dent  contractor,  there  is    still   an 
ulterior    question    to    be    settled, 
viz.,  whether  the  men   who   were 
engaged  in  doing  the  work,  which 
was   the   immediate   cause   of   the 
injury,    were    at    the    time    when 
the  injury  was  received  under  his 
control    or   under   the    control   of 
the  employer.    If  the  latter  should 
be    the    situation    established    by 
the     evidence,     the     employer     is 


plainly  liable,  and  the  indepen- 
dence of  the  contract  ceases  to 
be  a  dififerentiating  factor."  Note 
to  Richmond  v.  Sitterding  (1903, 
Va.),  65  L.  R.  A.  458,  referring 
to  37  L.  R.  A.  33,  especially  p.  69, 
et  seq.  Where  the  plaintiff  was 
injured  by  the  negligent  manage- 
ment of  moving  railway  cars, 
while  he  was  working  for  a  man 
who  had  contracted  to  discharge 
coal  from  cars  standing  on  a  sid- 
ing, the  discussion  was  centered 
wholly  upon  the  question  whether 
the  defendant  company  exercised 
such  a  control  over  the  plaintiff 
and  his  fellow-servants  as  to  make 
them  its  own  servants  ad  hanc 
vie  em.  Turner  v.  Great  Eastern 
Railroad  Co.  (1875),  33  L.  T.  (N. 
S.),  431. 

"*"  Brett,  J.,  in  Murray  v.  Cur- 
rie  (1870),  L.  R.,  6  C.  P.  24. 
Prof.  Burdick  calls  this  the  true 
test;  Burd.  Torts,  139.  Where 
steamboat  owners  were  sued  for 
the  negligence  of  those  operating, 
the  trial  court  was  held  to  have 
erred  in  rejecting  evidence  tend- 
ing to  show  a  transfer  of  control 
by  the  owner.  Gulzoni  v.  Tyler 
(1883),  64  Cal.  334;  30  Pac.  981. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


67 


In  a  recent  California  case  the  facts  presented  were  some- 
what unusual.  The  defendant's  farm  superintendent,  who 
was  also  a  member  of  a  hardware  firm,  directed  an  em- 
ployee of  the  firm  to  go  to  the  farm  and  repair  a  leak  in  a 
tank,  a  farm  appliance.  This  was  so  negligently  done  that 
an  explosion  occurred  and  the  plaintiff's  intestate,  the  de- 
fendant's farm  servant,  w^as  killed.  The  hardware  firm 
was  held  to  be  an  independent  contractor,  notwithstanding 
the  connection  of  the  defendant's  superintendent  there- 
with. ^^^^  As  shown  by  the  citations  below,  the  question  is 
sometimes  also  presented  whether  the  employer,  whose 
wrongdoing  servant  caused  the  injury  complained  of, 
was  an  independent  contractor  or  stood  in  some  other 
relation.  ^^^ 


A  person  employed  and  paid  by  a 
contractor  as  driver  of  a  horse 
and  wagon  which,  together  with 
the  driver,  the  contractor  lets  by 
the  day  to  a  city  to  be  used  in 
the  work  of  paving  a  street,  and 
who  has  the  entire  management 
of  the  horse  as  to  the  manner  of 
driving  him  and  whose  duty  it  is 
to  see  that  he  is  properly  shod,  is 
the  servant  of  the  contractor  in 
so  driving  the  horse  and  having 
him  shod,  and  from  injury  to  a 
third  person  caused  by  his  negli- 
gence in  these  respects,  the  con- 
tractor is  liable.  Huff  v.  Ford 
(1878),  126  Mass.  24;  30  Amer. 
Rep.  645.  Where  in  a  given  case 
a  steam  roller  used  in  the  im- 
provement of  a  road  was  hired  by 
the  proprietor  to  the  city  charged 
with  the  reparation  of  the  road, 
it  was  held  that  the  engineer  in 
charge  of  the  machine  remained 
the  servant  of  the  proprietor 
whose  immtdiate  employee  he  was, 


so  that  it  was  responsible  for  his 
negligence  in  injuring  a  traveler 
on  the  highway.  Stewart  v.  Cali- 
fornia Improvement  Co.  (19u0), 
131  Cal.  125;  63  Pac.  177,  724; 
Burd.  Cas.  Torts,  412;  52  L.  R.  A. 
205. 

"^"a  Hedge  v.  Williams  (1901). 
131  Cal.  455 ;  63  Pac.  721 ;  64  Id. 
106;  82  Amer.  St.  Rep.  366. 

^'''  By  statute,  defendant  was 
granted  the  right  for  a  given  time 
to  maintain  a  certain  ferry ;  he 
entered  into  a  contract  with  one 
H.  who  was  to  keep  and  manage 
the  ferry  at  his  own  expense  for 
labor,  repair  expenses  to  be  borne 
equally,  and  the  receipts  to  be  di- 
vided equally;  H.  further  agreed 
to  allow  none  but  a  competent 
man  to  attend  the  ferry  and 
agreed  to  be  answerable  for  dam- 
ages due  to  negligent  manage- 
ment ;  while  H.  was  in  charge 
under  such  coiUract,  the  boat  up- 
set and  the  plaintiff  was  injured ; 


68 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


Sec.  32.     Burden  of  Proof,  on  Whom. 

"The  weight  of  authority  is  in  favor  of  the  doctrine  that, 
when  the  inquir}^  is  at  that  initial  stage  at  which  nothing 
more  appears  than  that  the  actual  tort-feasor  was,  at  the 
time  when  the  injury  was  inflicted,  in  the  employment  of 
him  who  is  sought  to  be  held,  the  latter,  if  he  relies  on  that 
defence,  has  the  burden  of  proving  that  the  tort-feasor  was 
an  independent  contractor."  ^^-  "Though  such  a  doctrine 
has  apparently  not  been  explicitly  formulated,  it  would  seem 
at  least  to  be  a  reasonable  inference  from  the  decisions, 
as  a  whole,  that  no  presumption  that  the  relation  of  the 
parties  was  that  of  master  and  servant  can  be  entertained, 
when  the  case  has  been  developed  to  a  point  at  which  the 
nature  of  the  employment  (whether  general  or  with  a  view 


it  was  held  that  the  contract  being 
such  as  to  vest  the  occupancy  and 
control  of  the  ferry  in  H.  as  ten- 
ant rather  than  as  servant,  the 
defendant  was  not  liable  for  his 
acts.  Felton  v.  Deall  (1850),  22 
Vt.  170;  54  Amer.  Dec.  61.  In  a 
Massachusetts  case  the  somewhat 
analogous  question  whether  a 
master  rigger  employed  to  do  cer- 
tain work  on  a  building,  who 
hired  his  own  men  and  furnished 
his  own  tools  and  received  a 
specified  price  per  diem  for  the 
services  of  his  men  and  the  use 
of  his  tools,  was  an  independent 
contractor  or  a  servant,  was  not 
specifically  determined,  as  the  de- 
fendant was  held  not  liable  under 
either  theory.  Harkins  v.  Stand- 
ard, etc..  Refinery  (1877),  122 
Mass.  400. 

^-  Note  to  Richmond  v.  Sitter- 
ding  (1903,  Va.),  65  L.  R.  A.  459, 
citing    Welfare    v.    London,    etc.. 


Railroad  (1869),  L.  R.,  4  Q.  B. 
693.  Prima  facie,  the  person  at 
whose  instance  and  for  whose  use 
and  benefit  work  is  done  is  liable 
for  all  injuries  to  third  persons  re- 
sulting from  the  negligence  or 
unskillfulness  of  those  executing 
the  work;  that,  unless  some  evi- 
dence is  given  as  to  the  terms  of 
the  contract,  "it  is  no  more  proper 
to  assume  that  it  gave  the  con- 
tractor an  independent  employ- 
ment than  that  it  stipulated  for 
the  work  to  be  done  under  the 
immediate  supervision  and  direc- 
tion of  the  defendant ;"  if  the 
defense  is  that  the  wrongdoer  was 
not  a  servant  the  contract  must 
be  shown  "with  sufficient  particu- 
larity to  enable  the  court  to  de- 
termine whether  the  employment 
was  of  this  independent  char- 
acter." McCamus  v.  Citizens,  etc., 
Co.  (1863),  40  Barb.  (N.  Y.),  380. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


G9 


to  a  specific  result)  the  character  of  the  work  contracted 
for  and  the  industrial  status  of  the  person  engaged  have 
been  disclosed  by  the  testimony."  ^**^  As  between  the  regu- 
lar employer  and  a  temporary  one,  the  burden  seems  to  be 
on  the  latter  of  showing  that  the  one  who  is  rendering  service 
to  him  is  not  his  servant,  but  the  servant  of  the  former.  ^'^^ 
Some  cases  expressly  hold  that  in  some  stages  of  the  evi- 
dence the  presumption  that  the  relation  of  master  and  serv- 
ant did  not  exist  will  prevail  and  thus  inure  to  the  defen- 
dant's advantage.  ^^^ 


^■^Note  to  Richmond  v.  Sitter- 
ding  (1903,  Va.),  65  L.  R.  A.  460. 

^*  Taylor,  etc.,  Railroad  v.  War- 
ren (1895),  88  Tex.  642,  648;  31 
S.  W.  66;  32  S.  W.  868. 

wo  Welfare  v.  London,  etc..  Rail- 
road (1869),  L.  R.,  4  Q.  B.  693; 
Boniface  v.  Relyea  (1868),  6  Robt. 
397;  driver  of  a  carriage  at  a 
funeral  was  negligent  and  it  was 
held  that  evidence  of  the  employ- 
er's right  to  control  was  neces- 
sary. In  Ev.'\NSViLLE  V.  Senhenn 
(1897),  151  Ind.  42,  61;  47  N.  E. 
634;  51  Id.  88;  41  L.  R.  A.  728, 
734;  68  Amer.  St.  Rep.  218,  .evi- 
dence that  a  city  had  a  contract 
with  the  person  who  piled  lumber 
on  a  street  for  the  purchaser  of 
such  lumber  is  sufficient  to  author- 
ize an  instruction  regarding  the 
owner's  liabiUty  to  third  persons 
for  an  independent  contractor's 
negligence  although  the  terms  of 
the  contract  do  not  appear,  since 
if  there  is  anything  in  such  con- 
tract tending  to  show  the  relation 
of  master  and  servant  between  the 
city  and  such  person,  the  one  as- 
serting such  relation  should  ofifer 
evidence  to  approve  it.  An  Illi- 
nois  court   held   it   was    error   to 


permit   a    jury   to   assume   that   a 
man    employed    by    defendant    to 
take  charge  of  a  stable  and  train 
defendant's  horses  was  necessarily 
a  servant;  in  this  case  the  trainer 
assaulted  a  man  hired  by  him  and 
the  defendant  was  held  not  liable. 
Arasmith    v.    Temple    (1882),    11 
Ills.    App.   39.     In   Alabama   it   is 
held  that  as  the  burden  is  on  the 
plaintiff  to  prove  that  the  relation 
of  master  and  servant  existed,  no 
presumptions  which   do  not  arise 
from  the  evidence  can  be  indulged 
in    favor    of   plaintiff.      Harris    v. 
McNamara  (1892).  97  Ala.  ISl ;  12 
So.   103.     As  to   what  constitutes 
prima    facie    case    showing    such 
relation,  see  Rome,  etc.,  R.\ilro.\d 
v.  Chasteen  (1889),  88  Ala.  591; 
7  So.  94;  40  Amer.  &  Eng.  Rail- 
road Cas.   559.     To  the  contrary, 
the  burden  was  held  to  be  upon 
the    employing    railroad    to    show 
that     injuries    to    property    were 
done  by  an  independent  contractor 
for  whose  conduct  it  was  not  re- 
sponsible, in  St.  Louis,  etc.,  R.  v. 
Davenport    (1906).   80   Ark.   244; 
96   S.  W.  994;  48  Amer.  &  Eng. 
Rv.  Cas.   (N.  S.).  516. 


70  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  33.     Obligation  of  Personal  Performance  as  Test. 

"If  the  terms  of  the  contract  are  such  as  to  indicate  that 
the  person  employed  may,  if  he  so  desires,  perform  the 
stipulated  work  by  deputy,  it  will  usually  be  inferred  that 
he  is  not  engaged  as  a  servant.  This  rule  is  illustrated  by 
the  decisions,  which  exclude  from  the  scope  of  statutes 
specifically  applicable  to  masters  and  servants,  all  agree- 
ments under  which  the  person  employed  is  not  obliged  to 
perform  the  work  himself."  ^^°  A  company  which  agrees 
to  become  the  general  constructor  and  repairer  for  another 
company  and  to  assume  all  risks  in  reference  thereto,  is  an 
independent  contractor.  ^^'^ 

Sec.  34.     Compensation  as  Test. 

"While  the  manner  in  which  payment  is  made  is  not  a 
decisive  test,  yet  it  is  undoubtedly  an  evidentiary  fact  to 
be  taken  into  consideration  for  what  it  is  worth  in  connec- 
tion with  the  other  circumstances  to  determine  what  the 
contract  really  was."  ^^^     In  an  Indiana  case  it  was  held 

'*•  Note  to  Richmond  v.  Sitter-  permissible  to  lay  down  the  doc- 
DiNG  (1903,  Va.),  in  65  L.  R.  A.,  trine  that,  if  it  should  appear, 
p.  500,  citing,  inter  alia,  Ex  parte  either  from  the  nature  of  the  em- 
Rathbone  (1892),  13  New  South  ployment  or  the  terms  of  the 
Wales,  L.  R.,  56;  McElroy  v.  agreement,  that  the  person  em- 
Australian,  etc.,  Co.  (1899),  24  ployed  is  expected  to  do  the  work 
Vict.  L.  Rep.  953;  Riley  v.  War-  with  his  own  hands,  the  appropri- 
den  (1848),  2  Exch.  59;  Bowers  ate  inference  will  usually  be  that 
V.  Lovekin  (1856),  6  El.  &  Bl.  he  is  engaged  as  a  servant.  But 
584;  Floyd  v.  Weaver  (1852),  21  there  is  very  little  judicial  author- 
L.  T.,  Q.  B.  (N.  S.),151;  Sharman  ity  on  this  specific  point."  (Same 
V.  Sanders  (1853),  13  C.  B.  166;  note,  p.  501.) 
Labatt  on  Master  &  Serv.,  pp.  "'Monroe  v.  Fred.  T.  Ley  & 
2063-2064.  "On  the  other  hand,  Co.  (1907),  156  Fed.  468.  Cf., 
as  the  principle  of  the  maxim,  note  132,  Sec.  21,  ante, 
delegatus  non  potest  delegare,  is  *'*  Thomps.  Neg.,  Sec.  629,  citing 
understood  to  apply  in  its  full  Morgan  v.  Bowman  (1856),  22 
force  to  a   servant,   it  is  perhaps  Mo.  538. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


71 


that  the  mode  of  payment  for  the  work  might  be  considered 
in  determining-  whether  one  was  an  independent  contractor, 
but  that  this  test  was  not  conclusive.  ^^^  "But  the  mode  of 
payment  is  not  a  decisive  test  by  which  to  determine  the 
question.  The  test  h'es  in  the  question  whether  the  contract 
reserves  to  the  proprietor  the  power  of  control  over  the 
employee."  '•'*'  It  is  immaterial  how  the  contractor  is  to 
be  compensated,  whether  by  a  lump  sum  or  a  commission 
on  the  cost  or  a  per  diem.  ^^^  It  was  laid  down  in  a  Louis- 
iana case  that  that  State's  code  ordinarily  infers  the  power 
of  control  and  discharge  from  the  payment  of  wages ;  and 
this  was  declared  to  be  the  common  law  rule  as  well,  but 
this  last  is  perhaps  too  broad.  ^^^ 

Various  methods  of  payment  may  be  adopted,  such  as  a 
per  diem  basis,  a  sum  in  gross,  a  percentage  or  a  quasi- 
commission  basis  on  the  entire  work,  or  so  much  per  qiian- 
tiiin  of  work,  and  the  like.  The  effect  of  each  of  these 
several  modes  of  compensation  has  been  reviewed  by  the 
courts,  but  not  uniformly  with  the  same  result.  ^^^     The 


""  Indiana,  etc.,  Co.  v.  Gray 
(1897),  19  Ind.  App.  565;  48  N. 
E.  803;  Kueckel  v.  Ryder  (1900), 
170  N.  Y.  562.  "Where  *  *  * 
compensation  is  dependent  on  the 
value  of  the  services." 

»"Thomp.  Neg.,  629,  citing  Mor- 
gan V.  Smith  (1893).  159  Mass. 
570;  35  N.  E.  101;  15  Am.  Neg. 
Cas.  667,  n ;  Harris  v.  McNamara 
(1892),  97  Ala.  181;  12  So.  103; 
Waters  v.  Pioneer,  etc.,  Co. 
(1892),  52  Minn.  474;  55  N.  W. 
52;  32  Amer.  St.  Rep.  564;  Geer 
V.  Darrow  (1891),  61  Conn.  220; 
23   At!.    1087. 

"'  W  h  i  t  n  e  y.  etc.,  Co.  v. 
O'Rourke  (1898\  172  Ills.  177; 
50  N.  E.  242;  Grace,  etc.,  Co.  v. 


Probst  (1904),  208  Ills.  147;  70 
N.  E.  12;  Morgan  v.  Smitli,  su- 
pra; Emmerson  v.  Fay  (1896),  94 
Va.  60;  26  S.  E.  386  (per  diem). 

"-Shea  v.  Reems  (1884),  36 
La.   Ann.   966. 

"^  "It  is  well  settled,  however, 
that  these  different  methods  of 
payment,  although  they  are  usually 
the  concomitants  of  the  relations 
thus  specified,  are  not  so  closely 
and  essentially  connected  there- 
with, that  tlie  character  of  the 
contract  can  be  inferred  as  a  mat- 
ter of  law  from  the  adoption  of 
one  method  or  the  other  in  the 
given  instance."  Note  to  RiCH- 
^^o^•n  v.  Sitterpixg  (1903,  Va.), 
in  65  L.  R.  A.  505. 


72  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


payment  of  an  employee  by  the  day,  though  an  important 
consideration,  is  not  per  se  decisive  of  the  relation  of  master 
and  servant.     There  are  quite  a  few  cases  where  one  who 
was  working  by  the  day  has  been  held  an  independent  con- 
tractor. ^^^    For  the  fact  that  the  contractor  is  paid  by  the 
day  does  not  necessarily  destroy  the  independent  character 
of  the  employment. ^^^     In  a  leading  case  it  was  said  that 
one  employed  to  do  a  certain  service  under  a  contract  pro- 
viding that  the  owner  should  furnish  the  material  and  that 
the  contractor  should  employ  the  labor  and  superintend  the 
work  according  to  certain  plans  and  receive  a  per  diem  for 
himself  and  each  of  his  employees  was  an  independent  con- 
tractor. ^^°     In  another  leading  case  the  owners  of  a  sugar 
refinery  had  employed  a  rigger  to  remove  machinery  from 
a  railroad  car  to  their  refinery;  but  though  they  paid  him 
by  the  day,  they  neither  interfered  with  nor  directed  the 


"^  CoRBiN  V.  American  Mills 
(1858),  27  Conn.  274;  71  Amer. 
Dec.  63,  blasting  rock  by  the  day; 
Smith  v.  Simmons  (1883),  103 
Pa.  St.  32;  49  Amer.  Rep.  113, 
contractor  laying  pipe  by  the  day 
(doubtful,  because  the  work  was 
inherently  dangerous  at  all 
events)  ;  Moore  v.  Sanbourne 
(1853),  2  Mich.  519;  59  Amer. 
Dec.  209;  Pierrepont  v.  Loveless 
(1878),  72  N.  Y.  211,  driving  logs 
at  so  much  per  log;  Peachey  v. 
Rowland  (1853),  13  C.  B.  182; 
Linton  v.  Smith  (1857),  8  Gray 
(Mass.),  147,  stevedores  employed 
for  a  gross  sum;  Wright  v.  Hol- 
EROOK  (1872),  52  N.  H.  120;  13 
Amer.  Rep.  12,  employe  of  muni- 
cipality; and  compare,  Kellogg  v. 
Payne  (1866),  21  Iowa,  575; 
Wood  v.  Independent  School  Dis- 
trict (1876),  44  Iowa,  27. 


''^^  Harrison  v.  Collins  (1878), 
86  Pa.  St.  153;  27  Amer.  Rep. 
699;  Forsyth  v.  Hooper  (1855), 
11  Allen  (Mass.),  419;  Corbin  v. 
American   Mills,  supra. 

""Emmerson  v.  Fay  (1896),  94 
Va.  60;  26  S.  E.  386.  One  con- 
tracting with  a  city  to  excavate  a 
reservoir  and  do  the  preliminary 
work,  using  his  own  men,  teams 
and  material,  and  adopting  his 
own  method  of  doing  the  work, 
without  interference,  or  the  right 
to  interfere  on  the  city's  part,  is 
an  independent  contractor,  for 
whose  negligence  the  city  is  not 
responsible,  although  his  compen- 
sation is  fixed  at  a  specified  sum 
per  day  and  expenses;  Groesbeck 
V.  Pinson  (1899),  21  Tex.  Civ. 
App.  44;  50  S.  W.  620. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


73 


manner  of  the  work;  and  it  was  held  that  the  rigger  was 
an  independent  contractor  and  not  a  servant.  '•^' 

There  are  several  cases  where  the  person  w^orking  by  the 
job  and  paid  by  the  job  has  been  held  to  be  a  servant.  ^^® 
Thus,  it  was  held  that  a  laborer  engaged  for  50  cents  to 
drive  an  animal  was  a  servant  of  the  owner  and  not  an 
independent  contractor.  ^°'*  An  employee  has  been  held 
none  the  less  a  servant  because  he  was  to  be  paid  by  the 
piece  or  job  and  not  by  wages  or  salary.  -""  On  the  other 
hand,  it  was  held  that  testimony  that  the  wrongdoer  was 
employed  to  do  a  certain  work  for  $10,  that  he  employed 


""  Harrison  v.  Collins,  supra. 
The  owner  of  a  dredging  machine 
is  an  independent  contractor  who 
is  solely  liable  for  injuries  done 
by  the  negligence  of  its  crew  in 
performing  work  under  a  contract 
by  which  it  is  placed  at  the  dis- 
posal of  one  who  has  undertaken 
the  performance  of  a  particular 
piece  of  work,  the  dredge  to  be 
paid  for  at  a  certain  price  per 
day,  the  contract  to  be  terminated 
upon  dissatisfaction  of  the  one 
hiring  it,  and  the  crew  to  be  effi- 
cient and  diligent,  where  the  entire 
supervision  of  the  crew  is  under 
the  control  of  the  owner  of  the 
dredge,  except  as  to  the  mere 
direction  where  service  is  to  be 
performed.  Teller  v.  Bay,  etc., 
Dredging  Co.  (1907.  Cal),  90 
Pac.  942;  12  L.  R.  A.  (N.  S.), 
267 ;  Beatty,  Ch.  J.,  dissenting  with 
opinion. 

■"■^  BRACKET!     V.     LUBKE      (1862), 

4  Allen  (Mass.),  138;  81  Am.  Dec. 
694;  Sadler  v.  Henlock  (1855),  4 
El.  &  Bl.  570;  Detroit  v.  Corey 
(1861),   9    Mich.    165;    80   Amer. 


Dec.  78;  Darmstaetter  v.  Moyna- 
han  (1873),  27  Mich.  188;  Bur- 
gess v.  Gray  (1845),  1  Com.  B. 
578.  "These  last  three  cases  are 
somewhat  out  of  harmony  with 
the  current  authority."  Thomps. 
Neg.,  Sec.  630,  note  66. 

'™  O'Neill  v.  Blase  (1902),  94 
Mo.  App.  648;  68  S.  W.  764, 
distinguishing  Fink  v.  Missouri, 
ETC.,  Co.  (1834),  82  Mo.  276;  52 
Amer.  Rep.  376;  Milligan  v. 
Wedge  (1840),  12  Ad.  &  El.  737. 

=*»St.  Clair,  etc.,  Co.  v.  Smith 
(1890),  43  Ills.  App.  105;  Whitson 
v.  Ames  (1897),  68  Minn.  23;  70 
N.  W.  793;  2  Am.  Neg.  Rep.  178; 
(some  evidence  of  exercise  of 
control,  hence  properly  for  the 
jury)  ;  Rummell  v.  Dilworth, 
ETC.,  Co.  (1885),  111  Pa.  343;  2 
Atl.  363;  (1890),  131  Pa.  509;  19 
Atl.  345;  17  Amer.  St.  Rep.  827; 
PIUFF  V.  W.ATKIiVS  (1880),  15  S, 
C.  85 ;  40  Amer.  Rep.  680 ;  Richey 
v.  DuPre  (1883),  20  S.  C.  6; 
Dagenois  v.  Houle  (1897),  Que- 
bec, U.  C.  S.,  225. 


74 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


men  to  assist  who  were  under  his  control  and  were  paid 
by  him,  did  not  tend  to  show  that  the  employer  was  the 
master  of  the  wrongdoer.  ^"^  A  corporation  erecting  a 
building  for  the  owner,  under  a  percentage  contract,  by 
which  it  is  to  furnish  materials  and  labor  and  be  paid 
its  cost  with  a  percentage  added,  is  an  independent 
contractor.  ^"^ 

A  person  employed  by  a  railroad  company  to  clear  off 
and  burn  brush  and  rubbish  from  its  right  of  way,  at  a  cer- 
tain sum  per  mile,  who  hired,  paid  and  controlled  his  own 
help,  was  declared  in  a  leading  Arkansas  case  not  to  be  a 
servant  of  the  company,  but  an  independent  contractor.  ^*^^ 
Where  A.  undertook  to  clear  the  land  of  B.  at  a  stipulated 
sum  per  acre,  and  by  the  negligence  of  A.  fire  escaped  to 
the  land  of  C,  it  was  held  that  B.  was  not  liable  to  C.  ^^* 


*'East  St.  Louis,  v.  Giblin 
(1878),  3  Ills.  App.  219.  A  person 
employed  to  take  charge  of  a 
shingle  mill,  employ  and  pay  all 
laborers,  make  all  repairs,  manu- 
facture the  shingles  from  lumber 
furnished  by  the  owner,  install  at 
his  own  expense  any  new  ma- 
chinery to  be  furnished  on  his 
requisition  by  the  owner,  and  to 
receive  a  stipulated  sum  for  the 
product  of  the  mill,  is  an  inde- 
pendent contractor  in  the  employ 
of  the  owner  of  the  mill;  Ziebcll 
V.  Eclipse,  etc.,  Co.,  (1903),  33 
Wash.  591;   74  Pac.  680. 

""-  Whitney,  etc.,  Co.  v.  O'Rourke 
(1898),  172  Ills.  177;  50  N.  E. 
242.  A  person  employed  by  a 
sewing  machine  company,  under 
a  written  contract  to  sell  its  wares 
and  to  be  paid  by  commissions  on 
sales  and  collections,  the  company 
to  furnish  a  wagon  and  he  fur- 
nishing horse  and  harness,  to  be 


used  exclusively  in  such  business, 
he  agreeing  to  give  his  whole 
time  and  best  energy  to  the  busi- 
ness, and  to  employ  himself  under 
the  company's  direction  and  unT 
der  its  rules  and  restrictions,  is 
a  servant  of  such  company; 
Singer  Manufacturing  Co.  v 
Rahn  (1889),  132  U.  S.  518;  33 
Law  ed.,  440;  10  Sup.  Ct.  175; 
Huff.  Cas.  Agcy.  9. 

-'"  St.  Louis,  etc..  Railroad  v. 
YoNLEY  (1900),  53  Ark.  503;  13 
S.  W.  333;  14  S.  W.  800;  45  A. 
&  E.  Railroad  Cas.  518;  9  L.  R. 
A.   604. 

^*  Ferguson  v.  Hubbell  (1884), 
97  N.  Y.  507;  49  Amer.  Rep.  544. 
One  who  undertakes  to  clear  a 
tract  of  land  at  so  much  per  acre 
or  for  the  whole  tract  is  consid- 
ered an  independent  contractor; 
Threlkeld  v.  White  (1890),  8  New 
Zeal.  L.  R.  513. 


WnO    ARE    INDEPENDENT    CONTRACTORS, 


75 


On  the  other  hand,  the  mere  fact  that  a  teamster  was  paid 
at  a  certain  rate  per  foot  for  hauHng  lumber  was  consid- 
ered insufficient  to  constitute  the  teamster  an  independent 
contractor.  -^^ 

Merely  because  the  employer  pays  the  contractor's  serv- 
ants does  not  conclusively  determine  that  he  is  to  be  regard- 
ed as  their  master ;  2*'"  nor  does  the  fact  that  a  person 
alleged  to  be  an  independent  contractor  is  employed  at  $2 
per  day  and  hires  other  persons  at  the  rate  of  $1.50  per 
day  take  away  the  independent  character  of  his  employ- 
ment. -'^"  One  who,  having  contracted  to  sink  a  shaft  for 
the  owner  of  a  coal  mine  also  undertakes,  at  the  request  of 
the  company's  superintendent,  to  unload  certain  boilers, 
using  his  own  men  in  so  doing  and  receiving  no  instructions 
as  to  the  mode  of  doing  the  work,  charging  a  lump  sum 
for  such  services,  is  an  independent  contractor,  even  though 
no  fixed  price  was  agreed  upon  in  advance.^'*** 

Sec.  35,     Character  of  Work  as  Test. 

The  contract  under  which  the  work  has  been  done  must 
control,  depending  on  surrounding  circumstances;  for  the 


="'  MacDonald  v.  O'Reilly  (1904), 
45  Ore.  589;  78  Pac.  753.  The 
mere  fact  that  a  coal  miner  is 
paid  a  certain  amount  for  each 
ton  of  coal  taken  out  by  him  does 
not  constitute  him  an  independent 
contractor,  in  such  sense  that  he 
is  exempt  under  the  statute  in 
controversy ;  Outrine,  etc.,  Co.  v. 
Gregory  (1903),  28  Vict.  L.  Rep. 
586. 

=^Rourke  v.  White,  etc.,  Co. 
(1877),  1  C.  P.  Div.  556;  2  C.  P. 
Div.   305. 


^'Karl  V.  Juniata  Co.  (1903), 
206  Pa.  St.  633;  56  Atl.  78.  No 
inference  that  one  employed  in 
unloading  supplies  for  a  company, 
hiring  his  own  help,  is  an  inde- 
pendent contractor,  arises  from 
the  fact  that  his  compensation  is 
at  a  fi-xed  amount  per  carload; 
Foster  v.  National,  etc.,  Co. 
(1907),  216  Penn.  279;  65  Atl. 
618. 

""^Galatia,  etc.,  Co.  v.  Harris 
(1904),  116  Ills.  App.  70. 


76 


INDEPENDENT    CONTRACTORS    AND    THEIR    LLVBILITY. 


mere  fact  that  the  wrongdoing  representative  carried  on  a 
separate  and  independent  employment  (such  as  domestic 
service)  will  not  absolve  the  constituent.^*'^  Merely  because 
the  work  being  done  by  an  employee  at  the  time  he  was  in- 
jured was  being  done  by  the  piece  or  job,  does  not  deprive 
him  of  the  character  of  employee,  where  he  was  a  mere  serv- 
ant carrying  out  the  employer's  will  and  instructions. ^^^ 
"The  ground  upon  which  some  decisions  may  be  said  to  have 
proceeded  was  that,  in  view  of  the  humble  industrial  status 
of  the  persons  employed,  and  the  simple  character  of  the 
work  to  be  done,  the  only  admissible  inference  was  that 
the  employers  intended  to  retain  the  right  to  give  directions 
in  regard  to  the  details  of  the  work.  In  other  words,  it 
was  considered  that,  although  the  persons  employed  might 
be  exercising  an  independent  calling  in  the  sense  that  they 
held  themselves  out  as  being  prepared  to  do  certain  kinds 
of  work  for  such  parties  as  might  engage  them,  the  relation 
which  they  bore  to  those  parties,  during  the  progress  of 
such  work  as  might  be  undertaken  by  them,  was  in  law  that 
of  a  servant."  ^^^     It  is  held  in  Massachusetts  that  the  em- 


^' Brackett  v.  Lubke  (1862), 
4  Allen  (Mass.),  138;  81  Am.  Dec. 
694;  Sadler  v.  Henlock  (1855), 
4  El.  &  Bl.  570. 

^°  Tennessee,  etc,  Co.  v.  Hayes 
(1892),  97  Ala.  201;  12  So.  98; 
Speed  V.  Atlantic,  etc.,  Railroad 
(1879),  71  Mo.  303;  2  Am.  &  Eng. 
R.  Cas.  17;  contra,  Fink  v.  Mis- 
souri, ETC.,  Co.  (1884),  82  Mo. 
276 ;  52  Amer.  Rep.  376,  a  remark- 
able case,  characterized  by  Judge 
Thompson  as  "a  brutal  decision." 
Thomp.    Neg.   629;   note   59. 

^  Note  to  Richmond  v.  Sitter- 
ding  (1903,  Va.),  in  65  L.  R.  A. 
495.      Thus,    where    a    trap    was 


capsized  by  striking  against  a 
heap  of  stones  which  had  been 
left  beside  the  road  by  a  man  who 
had  been  employed  to  repair  it, 
the  defendant  was  held  liable  on 
the  general  ground  that  "if  a 
person  does  merely  menial  work, 
then  he  is  clearly  a  servant;" 
Tucker  v.  Axbridge,  etc..  Board 
(1889,  Q.  B.  D.),  53  J.  P.  87; 
Cf.,  Threlkeld  v.  White  (1890,  C. 
A.),  8  New  Zeal.  L.  R.  513;  Ser- 
andat  v.  Saisse  (1866),  L.  R.  1 
P.  C.  152;  McKeon  v.  Bolton 
(1851),  1  Irish  C.  L.  Rep.  377, 
where  a  man  engaged  to  clean 
out    defendant's   ashpit   at   certain 


WHO    ARE    INDEPENDENT     CONTKACT<^RS. 


I  I 


ployer's  intention  to  retain  the  right  of  exercising  control 
and  hence  creating  the  relation  of  master  and  servant  should 
always  be  inferred  where  it  appears  that  the  employment 
was  general  and  not  based  on  a  contract  to  do  a  certain 
piece  of  work  on  certain  specified  terms  in  a  particular 
manner  and  for  a  stipulated  price.  ^^^  There  is  consider- 
able authority  against  the  doctrine  that  the  relation  of 
master  and  servant  may  be  inferred  where  the  employment 
was  general,  in  so  far  as  such  doctrine  is  advanced  as  one, 
which  irrespective  of  the  nature  of  the  stipulated  work  and 
the  employee's  industrial  status,  furnishes  an  adequate  and 
decisive  test  of  the  character  of  the  contract.  ^^^ 


intervals  once  deposited  them 
in  the  street  temporarily  and 
thereby  caused  injury  to  plaintiff, 
Blackburn,  J.,  remarked  that  the 
nature  of  the  employment  made 
a  difference,  and  that  the  wrong- 
doer was  a  mere  servant,  regard 
being  had  to  the  fact  that  it  was 
on  defendant's  own  premises  and 
under  his  wife's  directions. 

-'-Bkackett  v.  Lubke  (1862), 
supta;  Dane  v.  Cochrane,  etc.,  Co. 
(1895),  164  Mass.  453;  41  N.  E. 
678.  Cf.,  Regina  v.  Hughes 
(1846),  2  Cox  C.  C.  104,  under  a 
criminal  statute;  City  of  Tiffin 
V.  McCoRMACK  (1878),  34  Ohio 
St.  638;  32  Amer.  Rep.  408;  Ny- 
back  V.  Champagne,  etc.,  Co. 
(1901).  48  C.  C.  A.  632;  109  Fed. 
732;  Perry  v.  Lord  (1885),  17 
Mo.  App.  212. 

^^  Welfare  v.  London,  etc., 
Railrond  (1869),  L.  R.  4  Q.  B. 
696;  Hexamer  v.  Webb  (1886), 
101  N.  Y.  2,77;  4  N.  E.  755;  54 
Amer.  Rep.  703.  See,  also,  Button 
V.    Ame.sbury,   etc.,   Bank    (1902), 


181  Mass.  154;  63  N.  E.  405.  The 
relation  of  independent  contractor 
exists  between  the  owner  of  lands 
and  a  person  he  employs  to  move 
a  building  in  which  service  the 
contractor  is  to  furnish  the  labor 
and  appliances  for  a  specified  sum ; 
Wilbur  V.  White  (1903),  98  Me. 
191:  56  Atl.  657;  16  Am.  Neg. 
Rep.  605,  n.  In  a  case  where  one 
of  two  adjoining  proprietors  em- 
ployed a  man  to  repair  a  wall  in 
his  building  nearest  plaintiff's 
structure,  and  the  man  so  em- 
ployed dug  up  the  ground  in  the 
passageway  and  left  it  so  piled 
up  that  when  a  storm  occurred 
the  water  was  turned  into  plaint- 
iff's cellar,  it  was  held  tlie  rela- 
tion of  master  and  servant  was 
not  established  between  the  em- 
ployer and  employe  and  his 
workmen,  and  hence  defendant 
was  not  liable  for  the  resulting 
injury;  Button  v.  Amesbury,  etc.. 
Bank,  supra.  One  who  has  en- 
gaged to  do  a  piece  of  filling  for 
a    railroad   company    at   so   much 


78 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


Sec.  36.     Relation  Determined  by  Statute. 

(a)  Civil  Statute. 

An  Arkansas  statute  which  provides :  "If  any  hireling 
shall  wilfully  set  on  fire  any  woods,"  etc.,  so  as  to  occasion 
loss  to  another,  with  the  employer's  consent  or  demand,  the 
employer  shall  be  liable  was  held  in  a  leading  case  to  refer 
to  servants  but  not  to  include  independent  contractors.  ^^^ 
A  contractor  with  the  minister  of  railways  and  canals,  as 
representing  the  Crown  for  constructing  a  branch  railroad, 
is  not  an  "employee"  of  the  Canadian  Railway,  etc.,  Depart- 
ment within  the  1881  Government  Railway  Act  (44  Vict, 
Chap.  25)  requiring  action  against  any  officer,  employee 
or  servant  of  the  department  for  anything  done  by  virtue 
of  his  employment  to  be  brought  within  three  months,  etc.^^^ 

(b)  Criminal  Statute. 

A  Maine  statute  makes  the  owners  or  lessees  of  a  mill 
liable  for  the  acts  of  "persons  in  their  employ"  in  throwing 


per  yard,  is  an  independent  con- 
tractor, although  the  company 
furnished  track,  trestle,  cars, 
mules  and  drivers;  Central  Rail- 
road V.  Grant  (1872).  46  Ga.  417; 
4  Am.  Neg.  Cas.  212,  n.  Contra, 
Stone  V.  Codman  (1834),  15  Pick. 
(Mass.),  297,  per  Shaw,  Ch.  J., 
whose  decision  is  criticised  by 
Judge  Thompson,  in  his  Commen- 
taries on  Negligence,  sec.  629, 
note  61. 

^*  St.  Louis,  etc.,  Railro.\d  v. 
YoNLEY  (1890),  53  Ark.  503;  13 
S.  W.  333;  14  S.  W.  800;  9  L.  R. 
A.  604;  45  Am.  &  Eng.  Ry.  Cas. 
578. 

=="  Kearney     v.     Oakes      (1890), 


18  Can.  S.  C.  148,  Ritchie,  Ch.  J., 
and  Gwynne,  J.,  dissenting.  Cf., 
E.\T0N  V.  European,  etc..  Rail- 
road (1871),  59  Me.  520;  8  Amer. 
Rep.  430.  A  person  who  sells 
and  delivers  stone  for  the  purpose 
of  repairing  a  road  is  a  contractor 
within  the  Upper  Canada  statute 
(16  Vict.  Ch.  190),  declaring 
"contractors"  to  be  liable  for 
leaving  materials  so  as  to  obstruct 
a  road ;  Lennox  v.  Harrison 
(1858),  7  U.  C.  C.  P.  496.  In 
Quebec  and  elsewhere  liy  the 
code  (sec.  1799,  French  Civ.  C), 
certain  workmen  who  make  con- 
tracts by  the  job  for  their  own 
account,    are    deemed   to    be   con- 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


79 


refuse  into  the  Penobscot  River.  A  person  who  was  oper- 
ating a  shingle  machine  to  manufacture  shingles  by  the 
thousand  for  such  owners,  etc.,  was  declared  not  to  be  such 
"person  in  their  employ"  as  to  render  them  liable.^^"  While 
there  are  but  few  American  cases  on  this  subject,  the  num- 
ber of  English  and  Canadian  cases  is  quite  large.  A  drover 
employed,  in  a  single  instance,  to  drive  two  cows  to  a  pur- 
chaser was  held  to  be  a  servant  under  a  statute  declaring 
embezzlement  by  "a  ser\^ant  or  person  employed  in  the  capa- 
city of  a  servant,"  to  be  a  felony.^' ^  One  who  hires  out 
to  work  with  his  own  ox-team  was  held  not  to  be  within 
the  English  statutes,  punishing  deserting  laborers.^^^     On 


tractors  for  the  kind  of  work 
they  undertake,  and  are  subject 
to  the  rules  prescribed  with  re- 
gard to  that  class  of  employes. 

^■^  State  V.  Emmerson  (1881),  72 
Me.  455.  To  the  same  effect,  State 
V.   Coe    (1881),  72  Me.  456. 

"^'Rex  V.  Hughes  (1832),  1 
Moody  C.  C.  370;  see  also,  Re- 
gina  V.  Goodbody  (1838),  8  Car. 
&  P.  665.  Where  a  man  employed 
to  drive  pigs  to  a  certain  place 
appropriated  the  proceeds  and  ab- 
sconded, he  could  not  be  con- 
victed of  larceny  on  the  theory 
that  he  had  possession  of  them 
as  the  prosecutor's  servant,  where 
the  evidence  was  that,  while  he 
was  paid  the  expenses  of  the  cat- 
tle, and  the  customary  mode  of 
paying  such  employes  was  by  tlie 
day.  he  was  a  drover  and,  ac- 
cording to  the  general  usage 
regarding  drovers,  had  the  liberty 
to  drive  anv.  one's  cattle ;  Rcgin:i 
v.  Hey  (1849),  2  Car.  &  K.  985, 
criticising  Rex  v.  McNamee 
(1832),  1  Moody  C.  C.  368.     To 


the  same  effect  as  Regina  v.  Hey, 
supra,  see  Regina  v.  Siffidge 
(1853),  Legge,  New  South  Wales 
793.  A  porter  who  was  occa- 
sionally employed  by  a  butter 
factor  to  leave  parcels  at  pur- 
chasers' houses  and  who  was  paid 
by  those  to  whom  he  delivered, 
was  held  to  be  such  factor's 
servant  within  the  embezzlement 
statute,  and  not  an  independent 
contractor;  Regina  v.  Lynch 
(1854),  6  Cox  C.  C.  445. 

■^nVhelen  v.  Stevens  (1827),  2 
Taylor,  Ont.,  439.  Fishermen  who 
agree  to  fish  from  their  homes  in 
their  own  boats,  for  lobsters  dur- 
ing the  fishing  season,  are  inde- 
pendent contractors  and  hence  not 
within  the  Newfoundland  "Master 
and  Servant"  act,  chap.  109.  and 
can  not  be  prosecuted  for  aban- 
doning their  contract,  by  taking 
up  their  traps  in  the  middle  of 
the  season  and  refusing  to  pro- 
ceed; Ex  parte  Costigan  (1884), 
Newf.  Rep.  414. 


80  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

the  g-roimd  that  an  information  laid  under  a  certain  statute 
showed  that  the  plaintiff  and  the  defendant  "stood  in  the 
situation  of  contracting  parties"  for  doing  certain  work,  it 
was  held  that  a  charge  to  the  effect  that  the  plaintiff  had 
contracted  with  B.  to  do  certain  work,  etc.,  and  having 
done  part  of  it  refused  to  complete  it,  was  insufficient  to 
sustain  conviction.  ^^^ 

Sec.  37.     Fleiiding  the  delation. 

In  an  able  and  exhaustive  .opinion.  Judge  Wiley  of  the 
Indiana  Appellate  Court  stated  :  "As  a  matter  of  pleading  w^e 
are  inclined  to  the  view  that  the    .    .    .    complaint  does  not 
show  that  N.  was  an  independent  contractor.     The  contract 
of    employment    as    disclosed    by    the    complaint,    did    not 
merely  look  to  the  result  to  be  attained,  but  also  to  the 
means  and  method  by  which  the  work  was  to  be  done  and 
which,  according  to  the  complaint,  were  to  be  determined 
by  the  appellant  (employers).     It  very  clearly  appears  that 
in  using  dynamite  to  accomplish  the  end,  N.  represented  the 
will  of  the  appellants,  and  therefore  did  not  act  indepen- 
dently and  of  his  own  volition,  and  in  this  respect  he  must 
be  regarded  as  having  acted  strictly  within  the  line  of  his 
employment  and  the  duty  he  owed  to  appellants."  ^^'^     An 
allegation  that  the  wrong-doing  person  was  working  "under 
the  superintendence,  control,  management  and  direction"  of 
the    defendant,    wall   be    construed    as    proceeding    on    the 
theory  that  such  person  is  a  servant,  and  if  the  testimony 

^"Lancaster  v.  Greaves    (1829),  road  v.   Farver    (1887),    111    Ind. 

9  Barn.  &  C  628.     Cf,  Hardy  v.  195;    64    Amer.    Rep.   656;    12   N. 

Pvle   (1829),  4  Mann.  &  R.  295;  E.  296;  31   Am.  &  Eng.  Ry.  Cas. 

Re-rina  v   Thomas   (1853),  6  Cox  134;  Powell  v.  Construction  Co. 

Qc.  403.  (1890),  88  Tenn.  692;   13  S.   W. 

-="Falender  v.  Blackwell  (1906),  691;  17  Am.  St.  Rep.  925;  Jensen 

39  Ind.   App.    121,   126;   79   N.   E.  v.  Barbour   (1895),  15  Mont.  582: 

393,    citing   Wabash,   etc..   Rail-  39   Pac.  906. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  81 

shows  he  was  an  independent  contractor,  there  will  be  such 
variance  as  to  preclude  plaintiff's  recovering.  ^-^  On  the 
other  liand,  it  is  said  by  at  least  one  court  that  the  intend- 
ment is  that  the  plaintiff  is  seeking  to  recover  on  the  ground 
of  the  existence  of  a  contract  of  service,  where  he  alleges 
in  his  declaration  that  the  negligent  person  was  "working 
under  the  direction"  of  the  defendant.  ^^^ 

Sec.  38.  Particular  Instances  of  Independent  Contractor. 
Without  attempting  to  exhaust  the  list  of  employments, 
which  have  been  passed  upon  and  determined  to  be  inde- 
pendent or  merely  those  of  service,  a  number  of  specific 
instances  will  be  enumerated.  ]\Iany  others  will  be  ob- 
served in  passing,  in  other  portions  of  this  work.  It  will 
be  noted  that  by  far  the  greatest  number  refers  to  those 
engaged  in  constructing  and  repairing  buildings,  railroads, 
public  improvements  and  such  enterprises,  and  in  employ- 
ments more  or  less  closely  allied  to  these  undertakings.  But 
at  the  same  time,  other  callings  (commercial  and  profes- 
sional) have  been  before  the  courts  and  instances  of  these 
latter  cases  will  be  cited. 

(a)      Building  Constructors. 

A  mason,  a  carpenter,  or  other  mechanic,  whose  business 
is  recognized  as  a  distinct  trade,  renders  services  to  his 
employer,  ordinarily,  as  an  independent  contractor  and  not 
as  a  servant.  ^^^     A  carpenter  employed  to  repair  a  house, 

^  Hunt    V.    Vanderbilt    (1894),  tractor  employed  to  erect  a  build- 

115  N.  C.  559;  20  S.  E.  168.  \v.g.  Hilliard  v.  Richardson  (1855), 

==M/\NN  V.  0'SuLLiv.\N  (1899),  3  Gray  (Mass.),  349.   Persons  em- 

126  Cal.  61 ;  58  Pac.  375 ;  77  Amer.  ployed    in    the    construction   of    a 

St.    Rep.    149.      As    to    allegations  church    are    not     ser\-ants    of    a 

in  criminal  complaints  see,  supra,  building  committee  who  look  after 

Sec.  36b.  the  work.  Wilson  v.  Clark  (1892). 

==^  Lawrence  V.  Shipman  (1873),  110    N.    C.    364;    14    S.    E.    962. 

39    Conn.    586;    so    also,    a    con-  Person  in  business  as  roof-slater 


82 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


without  stipulation  as  to  terms,  price  or  time  of  doing  it, 
has.  however,  been  held  a  servant  of  the  owner  for  whose 
neelisence  the  owner  is  liable.  ^~*  A  corporation  contract- 
ing  to  place  an  elevator  in  running  order  in  a  building  at 
a  stipulated  price,  without  direction  or  control  of  the  owner 
of  the  building  in  doing  the  work,  has  been  held  an  inde- 
pendent contractor  in  an  Indiana  case.  ^-^  Where  a  car- 
penter engaged  in  building  a  house  on  his  own  lot  contracts 
with  a  firm  of  brickmasons  to  do  all  the  brick  work,  such 
firm  employing  the  necessary  labor,  the  brickmasons  are 
independent  contractors.  ^26  A  master  plumber  employed 
to  repair  water  pipes  in  a  building,  in  his  own  way,  is  an 
independent  contractor.^^*  One  who  undertakes  to  do 
brick  and  stone  work  on  a  building  at  an  agreed  price  per 
cubic  foot  to  be  paid  on  estimates  as  the  work  progresses, 


is  an  independent  contractor  for 
whose  acts  in  roofing,  to  plaintiff's 
injury,  the  owner  of  the  building 
is  not  liable;  McCarthy  v.  Port- 
land, ETC.,  Parrish  (1871),  71 
Me.  318 ;  36  Amer.  Rep.  320. 

^^Brackett  v.  Lubke  (1862), 
4  Allen  (Mass.),  138;  81  Amer. 
Dec.  694. 

^^Parkhurst  v.  Swift  (1903), 
31  Ind.  App.  521;  68  N.  E.  620; 
16  Am.  Neg.  R.  613,  n.  One  em- 
ployed to  do  work  on  a  build- 
ing under  contract  authorizing 
him  to  procure  labor  and  material 
in  his  own  way,  provided  it  be 
such  as  the  contract  demands,  and 
to  use  such  machinery  and  appli- 
ances as  he  deems  proper,  if  he 
does  not  injure  the  building  or 
interfere  with  work  done  by 
others,  is  an  independent  con- 
tractor; Hu^hbanks  v.  Boston, 
etc.,    Co.    (1894),    92    Iowa    267; 


60  S.  W.  640;  14  Am.  Neg.  Cas. 
592,  n. 

--"  Richmond  v.  Sitterding 
(1903),  101  Va.  354;  43  S.  E. 
562;  99  Am.  St.  Rep.  879;  65  L. 
R.  A.  445 ;  16  Am.  Neg.  R.  609,  n.' 
One  under  contract  with  the 
owner  of  premises  to  erect  a  wall 
thereon  at  a  specified  price  per 
1,000  brick,  is  not  a  servant  of 
a  corporation  of  which  the  owner 
is  an  ofificer,  and  which  is  in  pos- 
session of  the  premises  and  also 
of  the  adjoining  premises,  so  as 
to  impose  the  duty  of  a  master 
upon  it  in  respect  to  protecting 
him  from  injury  from  its  ma- 
chinery; Horton  v.  Vulcan,  etc., 
Co.  (1897),  13  App.  Div.,  508; 
43  N.  Y.  Supp.  669. 

=^  Bennett  v.  Truebody  (1885), 
66  Cal.  509;  6  Pac.  329;  56  Amer. 
Rep.  117;  16  Am.  Neg.  R.  612,  n. 


WHO    AEE    INDEPENDENT    CONTRACTORS, 


83 


the  owner  furnishing  all  the  material,  but  having  nothing 
to  do  with  the  work  except  to  see  that  it  is  completed  in 
accordance  with  the  plans  and  specifications,  having  no 
control  over  the  workmen  employed,  is  an  independent 
contractor.  ^^^ 

(b)      Railroad  Constructors. 

Contractors  employed  by  a  railroad  company  to  build  a 
road,  or  to  grade  it,  have  been  held  independent  contractors 
in  a  number  of  cases.  "'•*  Where  a  railroad  company  em- 
ployed a  man  to  furnish  and  superintend  a  portable  engine 
to  pump  water  out  of  the  way,  so  as  to  admit  of  prosecuting 
the  work,  neither  the  company  nor  its  employees  having  the 
right  to  interfere  in  the  manner  of  nmning  the  engine  or 
in  giving  directions  to  its  owner,  the  latter  is  an  independent 
contractor.^'"'^  It  has  been  held  that  even  where  the  railroad 
company  furnishes  the  motive  power  and  operates  the  con- 
struction train  by  its  own  engineer,  it  will  not  be  liable  for 
damages  created  in  operating  it  where  the  engineer  is  under 


^' Chute  V.  Moeser  (1907),  77 
Kans.  706;  95  Pac.  398.  Cf., 
Scharff  v.  Southern  Illinois,  etc., 
Co.  (1905),  115  Mo.  App.  157;  92 
S.  W.  126;  Veitch  v.  Jenkins 
(1907),  107  Va.  68;  57  S.  E.  574. 
Evidence  was  held  insufficient  to 
show  that  a  master  steam  fitter  in 
repairing  a  building  was  an  inde- 
pendent contractor,  in  Meyers  v. 
Syndicate,  etc.,  Co.  (1907),  47 
Wash.  48;  91  Pac.  549.  Painters 
and  decorators  have  been  held  to 
be  independent  contractors ;  Met- 
zinp:er  v.  New  Orleans  Board,  etc. 
(1907),  120  La.  124;  44  So.  1007; 
Finkelstein  v.   Balkin    (1907),  103 


N.  Y.  Supp.  99.  Likewise  per- 
sons operating  mills,  factories, 
etc. ;  Kirby  v.  Lackawanna,  etc., 
Co.  (1905),  109  App.  Div.  334;  95 
N.  Y.  Supp.  833;  Giacomini  v. 
Pacific,  etc.,  Co.  (1907),  5  Cal. 
App.  218;  89  Pac.  1059;  B.vrclay 
V.  PuGET  Sound,  etc.,  Co.  (1908), 
48  Wash.  241;  93  Pac.  430;  16 
L.  R.  A.  (N.  S.),  140. 

^^  Louisville,  etc.,  R.mi.ro.xd  v. 
CONROY  (1896),  63  Miss.  562;  56 
Amer.  Rep.  810. 

^  Wab.^sh,  etc.,  R.mlro.sd  v. 
Farver  (1887),  111  Ind.  195:  12 
N.  E.  296;  60  Amer.  Rep.  696;  3 
Am.   &  Eng.  R.  Cas.   134. 


84         INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

the  control  of  the  contractor.^^"  Where  a  person  con- 
tracted with  a  railroad  company  to  complete  an  abandoned 
construction  job,  at  a  certain  price,  this  was  held  not  to 
make  him  the  company's  servant  for  whose  trespass  in  tak- 
ing timber  from  another's  land  the  company  would  be 
liable.  -^~  One  who  undertakes  to  grade  and  repair  a  part 
of  the  roadbed  for  a  railroad  track,  the  railroad  company 
having  no  control  of  the  means  by  which  the  work  is  to 
be  accomplished  and  having  only  a  right  of  general  super- 
vision and  inspection  to  see  that  the  contract  is  properly 
performed  is  an  independent  contractor.  ^^^ 

(c)     Architects. 

An  architect  who  merely  prepares  the  plans  and  specifi- 
cations and  does  not  thereafter  supervise  the  execution  of 
the  work  on  his  employer's  behalf  is  an  independent  con- 
tractor ;  -^^  and  especially  where  he  undertakes  to  execute 
the  entire  work  in  addition  to  preparing  the  plans. ^^^ 
It  is  said,  however,  that  as  building  operations  are 
ordinarily  conducted,  the  architect  acts  as  the  agent  of 
the  one  for  whom  the  work  is  being  done.^^*^  A 
recent  New  York  case  holds  that  an  architect  employed  by 


^'  Miller  v.  Minnesota,  etc., 
Railuoad  (1888),  76  Iowa  655; 
39  N.  W.  188 ;  14  Amer.  Dec.  258 ; 
38  Am.  &  Eng.  R.  Cas.  234. 

^-New  Orleans,  etc.,  Railroad 
V.  Reese  (1884),  61  Miss.  581;  18 
Am.  &  Eng.   R.   Cas.   110. 

^  Boyd    v.    Chicago,    etc.,    Co. 

(1905),   217    Ills.    332;    75    N.    E. 

496;    108  Amer.   St.  Rep.  253;  43 

Amer.  &  Eng.  R.  Cas.  (  N.  S. ) ,  1 54 ; 

Cf.,  Louisville,  etc.,  R.  v.  Cheatham 


(1902),  118  Tenn.  160;  100  S.  W. 
902. 

==^  Pitcher  v.  Lennon  (1896),  12 
App.  Div.  356;  42  N.  Y.  Supp. 
156;  Burke  v.  Ireland  (1901).  166 
N.  Y.  305;  59  N.  E.  914. 

^'Boswell  v.  Laird  (1857),  8 
Cal.  469;  68  Amer.  Dec.  345. 

^Campbell  v.  Lunsford  (1887), 
83  Ala.  512;  3  So.  522;  Schwartz 
V.  Gilmore  (1867),  45  Ills.  455; 
92   Amer.   Dec.   227. 


WnO    ARE    INDEPENDENT    CONTRACTORS. 


85 


the  owner,  in  the  matter  of  inspection,  is  to  be  regarded  as 
an  independent  contractor.  ^^^ 

(d)     Trnckinen. 

On  the  same  principle  (non-direction,  non-interference, 
etc.),  it  has  been  held  that  one  who  employs  a  public, 
licensed  draymen  to  liaul  a  lot  of  barrels  of  goods  is  not 
liable  for  injuries  inflicted  by  the  latter  by  rolling  a  barrel 
against  a  person.  ^38  A  leading  New  York  case  asserts  that 
a  truckman  renders  services  to  his  employer,  ordinarily,  as 
an  independent  contractor  and  not  as  a  servant.  --'^  An 
expressman  contracting  to  haul  goods  for  a  house  at  a  cer- 
tain price  per  week  is  an  independent  contractor.  ^-^^  One 
who  does  teaming  work  for  a  person,  who  merely  directs 
him  what  to  haul  and  where  to,  and  Vvdio  leaves  all  details 
of  the  work  to  the  employee  is  a  contractor  and  not  a  serv- 
ant. -"'^  While  plaintiff  was  walking  on  a  city  street,  she 
was  run  into  by  an  express  wagon  driven  by  B.,  a  licensed 
expressman,  owning  the  horse  and  wagon.  He  was  de- 
livering goods  for  the  defendant.  His  wagon  had  attached 
to  it  a  sign  whose  name  designated  defendant's  shop.  The 
arrangement  between  them  was  that  B.  was  to  deliver  de- 
fendant's  goods  at  $15  a  week,  furnishing  horse  and  wagon, 
doing  the  work  himself  or  by  his  employees  as  he  chose, 
determining  his  own  route,  being  free  to  and  doing  similar 


=="  Burke  v.  Ireland,  supra.  Ills.   App.    513;    (1897),    168   Ills. 

^DeForest   v.   Wright    (1852),  514;   48  N.   E.   163. 

2  Mich.  368.  cited  in  Tiffany  on  ==*  Murray   v.    Dwight    (1900), 

Dom.  Rels.  510.     See  also,  Dalton  161   N.  Y.  301 ;  55  N.  E.  901 ;  4S 

V.  Bachelor   (1851),  1   Post.  &  F.  L.  R.  A.  673. 

15.     For  a  case  involving  an  un-  "*"  Foster  v.  Wadsworth,  etc.,  Co. 

licensed  teamster  as  an  indcpend-  (1897),    168   Ills.    514;   48   N.    E. 

ent    contractor,    see    Wadsworth,  163. 

etc.,    Co.    V.    Foster     (1893),    50  ^"  McCarty  v.   Muir   (1893).  50 

Ills.  App.  510. 


86  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

work  for  others.  "If  the  facts  were  as  testified  to  by  B. 
and  defendant's  manager,  B.  was  not  defendant's  servant 
but  was  an  independent  contractor  for  whose  negligence 
defendant  was  not  responsible."  ^*- 

(e)     Liveryman. 

Livery-stable  proprietors  render  services  to  their  em- 
ployers, ordinarily,  as  independent  contractors  and  not  as 
servants.  ^^^  A  Federal  case  holds  that  the  driver  of  a 
licensed  cab  in  New  York  city  is  the  servant  of  the  owner, 
towards  the  public,  although  a  bailee  of  the  horse  and 
vehicle.  ^^^  The  relation  of  master  and  servant  is  not 
created  by  an  agreement  between  the  owner  of  cabs  and 
horses  whereby  they  are  let  to  drivers  for  a  specified  rental. 


-*■  Burns  v.  Michigan  Paint 
Co.  (1908),  152  Mich.  613;  116 
N.  W.  182.  In  a  note  to  this 
case  in  16  L.  R.  A.  (N.  S.),  816, 
"Cartmen  as  Independent  Con- 
tractors," it  is  said:  "The  cases 
generally  hold  that  draymen, 
truckmen,  cartmen,  etc.,  are  re- 
garded as  independent  contractors 
unless  there  is  specified  evidence 
that  control  was  exercised  over 
them  by  the  owner  of  the  goods 
being  hauled.  The  later  cases 
.  .  .  generally  turn  on  the 
question  whether  the  owner  of 
the  goods  exercised  or  did  not 
exercise  control  over  the  work 
during  the  process  of  the  haul- 
ing;" citing  Drennon  v.  Patton, 
Worsham,  etc.,  Co.  (1908,  Tex. 
Civ.  App.),  109  S.  W.  218;  Chi- 
cago, etc.,  Co.  V.  Campbell  (1904), 
116  Ills.  App.  322;  Loughrain  v. 
Autophone  Co.    (1902),  77  N.  Y. 


App.  Div.  542;  78  N.  Y.  Supp. 
919;  Baldwin  v.  Abraham  (1901), 
67  N.  Y.  Supp.  1079;  171  N.  Y. 
677;   64  N.    E.    1118. 

-"Quarman  v.  Burnett  (1840), 
6  Mees.  &  W.  499;  4  Am.  Neg. 
R.  437,  n. ;  Jones  v.  Corporation 
(1885),  14  Q.  B.  D.  890;  Joslin 
v.  Grand  Rapids  Ice  Co.  (1883), 
50  Mich.  516;  45  Amer.  Rep.  54; 
Driscoll  V.  Towle  (1902),  181 
Mass.  416;  63  N.  E.  922;  Little  v. 
Hackett  (1885),  116  U.  S.  366; 
6  Sup.  Ct.  391 ;  23  Law  ed.  655. 

="^Caroill  V.  Dufify  (1903),  123 
Fed.  721.  Compulsory  servants 
as  independent  contractors :  Li- 
censed public  carmen,  McMuUen 
V.  Hoyt  (1876),  2  Daly,  N.  Y. 
271 ;  licensed  drovers,  MilHgan  v. 
Wedge  (1840),  12  Ad.  &  El  737; 
but  contra,  in  principle,  Martin 
V.  Temperly  (1843),  4  Q.  B.  295. 
See  ante,  Sec.  8. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  87 

such  drivers  agreeing  not  to  use  the  horses  for  more  than 
a  certain  number  of  hours,  to  wear  a  particular  uniform, 
to  abstain  from  liquor,  conform  strictly  to  prescribed  rates 
and  other  regulations,  the  agreement  being  subject  to  can- 
cellation on  violation  of  any  such  condition,  there  being  no 
limitation  on  the  driver's  discretion  as  to  the  manner  in 
v^hich  he  shall  use  the  property  and  the  fares  earned  belong- 
ing to  him.  ^■^^ 

(/)     Loggers. 

One  cutting  logs  for  another  under  special  contract  and 
using  the  latter's  dam,  and  injuring  a  riparian  owner,  is 
an  iiidependent  contractor.  ^-^^  The  defendants'  agent  pur- 
chased a  raft  with  money  furnished  by  them  for  that  pur- 
pose. For  purchasing  and  transporting  the  raft  to  de- 
fendants' depot  he  received  a  commission.  The  defen- 
dant company  was  held  liable  for  negligence  in  sinking 
a  flat-boat  in  navigating  the  raft.  ^■^' 

(g)     Railroad  Companies. 

A  leading  case  holds  that  a  bailor  is  not  liable  for  the 
torts  of  a  bailee  or  the  bailee's  servants.  ^"^^  A  transfer 
company's  agent,  permitted  by  a  railway  company  to  check 
baggage  on  its  trains,  is  not  an  employee  of  the  railway 
company.  ^"*'^     A   Pullman  car  porter  is  a  servant  of  the 

**'  Connor    v.    Pennsylvania    R.  note  to  65  L.  R.  A.  469. 

(1904),  24  Pa.   Super.   Ct.  241.  =**  New  York,  etc.,  Railro.ad  v. 

^"  Carter     v.      Berlin      Mills  New      Jersey,      etc.,      Railroad 

(1876).   58   N.   H.   52;   42   Amcr.  (1897),  60  N.   J.   L.   338;   61    Id. 

Rep.   572.  287;    38    Atl.    828;    41    Id.    1116; 

=*' Taylor     v.      Mexican,      etc.,  43  L.  R.  A.  849,  854. 

Railroad   (1847),  2  La.  Ann.  654.  -^"  Meflford    v.     Louisville,    etc.. 

Timber  haulers,  etc.,  as  independ-  Railroad  (1892),  14  Ky.  Law  Rep. 

ent  contractors,  see  cases  cited  in  327;  20  S.  W.  263. 


88  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

railroad  company  hauling  the  car,  as  respects  passengers 
on  the  train.  ^^^  But  he  is  not  a  servant  of  the  railroad 
company  in  the  sense  that  makes  him  a  co-servant  of  the 
regular  train  employees. ^^^ 

A  lessee  or  licensee  of  the  exclusive  privilege  of  entering 
railroad  cars  or  upon  the  right  of  way  to  sell  or  supply 
lunches,  is  not  the  railroad  company's  agent  or  servant  so 
as  to  render  it  liable  for  an  assault  and  battery  on  such 
lessee's  competitor  lawfully  seeking  patronage  on  his  own 
premises,  of  passengers.  ^°^  Where  a  foot  passenger  fell 
through  a  railroad  bridge,  which  the  public  were  permitted 
to  use  upon  a  track  which  a  licensee  company  had  built  to 
connect  its  own  system  with  that  of  the  defendant,  the 
latter  was  held  not  liable.  --'^  One  railroad  company  own- 
ing a  road  which  is  under  the  exclusive  control  and  man- 
agement of  another  company  has  been  held  in  a  Kentucky 
case  not  to  be  liable  for  personal  injuries  occasioned  by 
the  negligence  of  the  latter's  employees.  -^^  A  mine  owner 
furnished  a  spur  track  connecting  with  an  adjacent  railway 
track  to  haul  coal  from  its  mine,  and  the  railway  company 
in  hauling  such  coal  used  its  own  cars  and  operated  them 
by  its  own  servants  in  a  negligent  manner.  The  railway 
company  was  held  to  be  an  independent  contractor,  and 
stood  in  the  relation  of  carrier  towards  its  shipper.  ^^^ 

A  street  railroad  company  may  be  employed  as  an  inde- 
pendent contractor  by  another  street  railroad  company  to 
clear  and  repair  its  cars  and  it,  and  not  defendant  company, 

^Railroad  Co.  v.   Ray    (1898),  =^Gwathney     v.     Little     Miami 

101  Tenn.  1 ;  46  S.  W.  554.     See  Railroad   (1861),   12  Ohio  St.  92. 

post,  Sees.  133,  135.  -=' Harper      v.      Newport,      etc., 

^'Hughson     V.     Railroad     Co.  Railroad  (1890),  12  Ky.  Law  Rep. 

(1893),  2  App.  D.  C.  98.  333;  14  S.  W.  346. 

^Fluker  v.  Georgia  Railroad  '^'^  Coal  Run  Coal  Co.  v.  Strawn 

(1889),  81    Ga.   461;   2  L.   R.   A.  (1884),   15   Tils.   App.  347. 
42;    9    S.    E.    529;    12   Amer.    St. 
Rep.    328. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


89 


was  held  liable  to  a  passenger  on  one  of  defendant's  cars 
for  the  negligence  of  the  servant  of  the  traction  company.  ^°° 

(It)     Vessels,  etc. 

One  chartering  a  ship  and  furnishing  a  crew  assuming 
control  by  contract,  is  an  independent  contractor  as  to  the 
owner,  and  not  an  agent  or  servant.  ^^"  If  a  charterer  of  a 
boat  employs  a  towing  company  to  tow  it,  the  latter  is  an 
independent  contractor  as  to  the  former,  for  the  negligence 
of  whose  servants  the  former  is  not  liable.  -^^  In  England 
the  courts  hold  that  "the  tug  is  in  the  service  of  the  tow, 
and  the  tow  is  answerable  for  the  negligence  of  her 
servant."  ^^°  In  America  the  owner  of  a  tug  is  regarded  as 
being,  under  ordinary  circumstances,  an  independent  con- 
tractor whose  negligence  is  not  imputable  to  the  owner  of 
the  tow.  "^^     A  stevedore  loading  a  ship  and  not  subject  to 


^Beckman  v.  Meadville,  etc., 
R.  (1907),  219  Pa.  26;  67  Atl. 
983;  51  Amer.  &  Eng.  R.  Cas.  (N. 
S.),  224. 

""McDowell  V.  Homer  Rams- 
dell,  etc.,  Co.  (1894).  78  Hun  (N. 
Y.),  228;  28  N.  Y.  Supp.  821. 

-'^McLauphlin  v.  New  York, 
etc.,  Co.  (1894).  7  Misc.  (N.  Y.), 
119;  27  N.  Y.  Snpp.  248.  Cf., 
generally,  Tanco  v.  Booth  (1891), 
15  N.  Y.  Supp.  110. 

="  Union  S.  S.  Co.  v.  The  Ara- 
can  (1874),  L.  R.  6  P.  C.  127. 
Cf.,  The  Niobe  (1888),  L.  R.  13 
Prob.  Div.  155,  rejecting  a  con- 
tention that  the  tug  owner  was 
an  independent  contractor  [coun- 
sel citing  Quarman  v.  Burnett 
(1840),  6  Mees.  &  W.  499],  and 
citing      Spraight      v.      Tedcastle 


(1881),  L.  R.  6  App.  C.  217;  The 
American  (1874),  L.  R.  6  P.  C. 
127.  See  also,  The  Stormcock 
(1885),  5  Asp.  Mar.  L.  Cas.  470; 
53  L.  T.  (N.  S.),53;  The  Cleadon 
(1860).  14  Moore  P.  C.  C.  97; 
The  Mary  (1879),  L.  R.  5  Prob. 
Div.  14;  The  Sinquasi  (1879),  L. 
R.  5   Prob.  Div.  241. 

-'"'  Sproul  v.  Hemmingway 
(1833),  14  Pick.  (Mass.),  1;  25 
Amer.  Dec.  350;  McLaughlin  v. 
New  York,  etc..  Co.  (1894),  7 
Misc.  119;  27  N.  Y.  Supp.  248; 
Sturgis  V.  Boycr  (1860).  24  How. 
110;  Mabey  v.  Coop' r.  The  (1871), 
14  Wall.  204;  The  Belknap  (1873),' 
2  Low.  Dec.  281 ;  Fed.  Cas.  1244. 
Contra,  Smith  v.  Creole  (1853), 
2  Wall.  Jr.,  485;  Fed.  Cas.  13033, 
overruled    by    later    cases,    supra. 


90 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  ship  owner's  control  is  an  independent  contractor.  ^'^^ 
"A  stevedore  furnishing  his  own  appliances  and  his  own 
servants  is  in  respect  of  the  owner  or  charterer  of  the  vessel, 
an  independent  contractor  and  not  a  sen^ant;  and  clearly 
the  owner  or  charterer  is  not  liable  for  the  negligence  of  the 
stevedore  or  his  servants,  in  the  absence  of  special  circum- 
stances changing  the  rule."  ^^^  A  stevedore  engaged  in  un- 
loading a  vessel  is  held  in  Massachusetts,  as  a  matter  of  law, 
an  independent  contractor,  ^^s  a  firm  undertaking  to  make 
repairs  on  a  vessel,  having  entire  control  of  the  work 
and  the  persons  engaged  thereon,  is  an  independent 
contractor.  ^^'* 


(i)      Traveling  Agents. 

If  the  control  which  is  generally  considered  the  decisive 
mark  of  the  relationship  of  master  and  servant,  was  as  a 
matter  of  fact,  exercised  over  a  commercial  traveler  (which 
fact  is  primarily  for  the  jury)  such  traveler,  though  paid  by 
commission,  is,  in  England,  a  '"servant"  only  within  the 
meaning  of  her  embezzlement  statutes.^^^ 


"^^  Rankin  v.  Merchants,  etc, 
Co.  (1884).  73  Ga.  229;  54  Amer. 
Rep.  874;  14  Am.  Neg.  Cas.  75; 
Sweeny  v.  Murphy  (1880),  32  La. 
Ann.    628. 

=«^Thomps.  Neg.,  Sec.  635,  citing 
Daley  v.  Boston,  etc.,  Railroad 
(1888),  147  Mass.  101;  16  N.  E. 
690;  Pregenzer  v.  Burleigh  (1893), 
26  N.  Y.  Supp.  35.  For  ferrymen 
as  independent  contractors,  see 
Bowyer  v.  Anderson  (1831),  2 
Leigh,  550;  Norton  v.  Wiswall 
(1858),  26  Barb.  618,  cited  in 
Crusselle  v.  Pugh  (1881),  67  Ga. 
430;  44  Amer.  Rep.  724;  Felton 
V.  Deall   (1850),  22  Vt.  170;  54 


Amer.  Dec.  61.  Licensed  pilots 
as  independent  contractors,  see 
The  Maria,  1  W.  Rob.  95,  106,  by 
statute;  cf.,  Martin  v.  Temperly 
(1843),  4  Q.  B.  295.  See  ante, 
Sec.  8. 

'■^^  Sullivan  v.  New  Bedford,  etc., 
Co.  (1906),  190  Mass.  288;  76 
N.  E.  1048. 

=«  Nelson  v.  Richardson  (1903), 
108  Ills.   App.   121. 

^^Regina  v.  Tite  (1861),  8  Cox 
C.  C.  458;  Rex  v.  Carr  (1811), 
Russ.  &  R.  C.  C.  198;  Regina  v. 
May  (1861),  Leigh  &  C,  C.  C. 
13;  Regina  v.  Bailey  (1871),  12 
Cox  C.  C.  56. 


WHO    ARE    INDEPENDENT    CONTRACTORS.  91 

(/)     Dealers  and  Merchants. 

Where  the  plaintiff  contracted  to  conduct  a  department  in 
defendant's  store  it  did  not  create  the  relation  of  employer 
and  employee  so  as  to  render  the  former's  absence,  without 
the  latter's  consent,  a  breach,  where  the  contract  treats  the 
plaintiff  as  the  principal  of  the  department,  makes  him  the 
responsible  purchaser  of  the  merchandise  purchased  for  it, 
leaving  the  defendant  merely  a  guarantor,  charges  him  with 
store  rent  and  office  expenses  and  with  one-half  of  all  losses 
arising  from  bad  debts,  reserves  to  the  defendant,  as  profits, 
merely  a  commission  on  the  net  sales,  and  interest  upon 
the  goods  purchased  for  the  department,  and  requires  him 
to  render  accounts  to  the  plaintiff. ^^^ 

(k)      Physicians. 

"There  is  no  more  distinct  calling  than  that  of  the  doctor 
and  none  in  which  the  employee  is  more  distinctly  free  from 
the  control  of  his  employer."  '^'^~  In  this  case  an  employee 
was  injured  in  a  street  car  accident,  and  the  company  sent  a 
physician  to  examine  him,  and  this  physician  directed  the  in- 
jured person,  who  claimed  he  could  not  stand  on  his  left  leg, 
to  try  to  stand  on  it,  and  in  an  effort  to  do  so  the  plaintiff 
fell  and  sustained  other  injuries ;  and  the  court  held  that  the 
company  was  not  liable  for  the  latter  injury  as  the  physician, 
in  making  the  examination,  was  an  independent  contractor 
and  free  from  the  control  or  direction  of  the  company  em- 
ploying him.  A  physician  whose  services  are  supplied  by  a 
common   carrier   to   an   employee    is   an    independent   con- 

^'•Lord  V.   Spiclman   (1898),  29  West  End  Railw.w   (1900),  176 

App.    Div.    292;    51    N.   Y.    Supp.  Mass.   177;   57  N.   E.  339;  49  L. 

534.  R.  A.  826;  79  Amer.  St.  Rep.  309; 

•"  Holmes.   Ch.   J.,   in    Pearl  v.  Burd.  Cas.  Torts,  407. 


92  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

tractor ;  -^^  so  also  one  whose  services  are  supplied  by  a 
common  carrier  to  a  passenger.  2«»  In  a  leading  case  in  New 
Jersey  a  physician,  whose  services  are  supplied  to  the  patients 
of  another  physician,  is  held  to  be  an  independent  con- 
tractor. 2™  In  another  and  later  leading  case  a  physician 
who  was  sent  by  a  person  who,  in  turn,  had  injured  the 
plaintiff,  for  the  purpose  of  examining  the  plaintiff,  was 
considered  an  independent  contractor.  ^'^ 

Ordinarily  a  trained  nurse  performing  her  usual  duties 
with  the  skill  which  is  the  result  of  training  in  that  pro- 
fession does  not  come  within  the  definition  of  a  servant,  but 
rather  is  one  who  renders  a  personal  service  to  an  employer 
in  pursuit  of  an  independent  calling  and,  therefore,  any 
liability  on  her  employer's  part  for  her  misconduct,  result- 
ing in  a  scandal  causing  loss  of  patronage  of  plaintiff's  hotel, 
can  not  rest  on  a  master's  responsibility  for  a  servant's 
acts.  ^'" 

(/)      Miners  and  Manufacturers. 

A  master  ore  digger  who  employs  and  pays  his  own  as- 
sistants, to  whose  exclusive  control  and  management  are 
committed  the  w^ork  of  mining  ore,  under  a  contract  with 
the  mine-owner,  and  Vvho  is  paid  by  the  owner  so  much  per 
car  for  ore  mined,  is  not  a  servant  of  the  owner,  although 
the  latter  has  a  right,  under  a  custom,  to  object  to  miners 


^York  V.  Chicago,  etc.  Rail- 
road (1896),  98  Iowa  544;  67  N. 
W.  574. 

^  O'Brien  v.  Cunard  S.  S.  Co. 
(1891),  154  Mass.  272;  28  N.  E. 
266;  13  L.  R.  A.  329;  Allan  v. 
State  Steamship  Co.  (1892),  132 
N.  Y.  91;  30  N.  E.  482;  15  L.  R. 
A.  166;  28  Amer.  St.  Rep.  556. 


="°  Myers  v.  Holborn  (1895),  58 
N.  J.  L.  193;  33  Atl.  389;  30  L. 
R.  A.  345 ;  55  Amer.  St.  Rep.  606. 

-•^  Pearl  v.  West  End  Railway 
(1900),  176  Mass.  177;  57  N.  E. 
339;  49  L.  R.  A.  826;  79  Amer. 
St.  Rep.  309;  Burd.  Cas.  Torts, 
407. 

"-Parker  v.  Seasongood  (1907), 
152   Fed.   583. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


93 


whom  the  master  ore  digger  assumes  to  employ.  ^^^  In  one 
case  the  plaintiff's  barn  was  destroyed  by  fire  from  a  mill 
which,  while  in  a  contractor's  possession,  caught  fire  from 
a  furnace  of  the  steam  engine;  the  court  held  that,  if  the 
engine  and  mill  were  not  in  fact  a  nuisance  when  delivered 
by  the  defendant  to  be  used  in  performing  the  contract,  and 
if  the  plaintiff's  injury  was  caused  by  the  contractor's  negli- 
gence in  not  keeping  them  in  proper  repair,  the  defendant 
was  not  liable.  -"^  One  selling  machinery  which  was  not 
to  become  the  buyer's  property  until  finally  accepted  as  satis- 
factory in  compliance  with  the  contract,  is  in  installing  and 
testing  it  in  an  independent  contractor,  although  the  power 
used  on  the  trial  is  furnished  by  the  buyer.  ^'^^ 

(m)      Public  Authorities. 

When  a  city  is  liable  by  reasons  of  its  proprietary  and 
private  capacity  as  distinguished  from  its  governmental 
character,  it  can  not  escape  liability  for  personal  injuries 
caused  by  the  negligent  operation  of  its  electric  light  plant 
on  the  ground  that  the  grant  of  authority  to  maintain  the 
plant  is  given  to  "the  board  of  trustees  of"  such  city  and  not 
in  terms  to  the  city ;  as  a  city  being  a  mere  intangible  thing, 
existing  only  in  legal  contemplation,  can  not  itself  use  the 


=""  Harris  v.  McNamara  (1892), 
97  Ala.  181;  12  So.  103.  In  an- 
other case  certain  lessees  had 
contracted  with  X.  to  work  the 
shale  for  them  at  a  given  price 
per  ton.  X.  was  to  supply  neces- 
sary furnishings,  maintain  ma- 
chinery, p:iy  employees'  wages,  and 
be  liable  for  all  accidents ;  he  was 
to  satisfy  himself  before  begin- 
nig  work  that  the  shaft,  etc.,  were 
safe,  and  neither  he  nor  the  lessee 
were  to  interfere  with  the  other's 


workmen.  Held:  X.  was  a  sep- 
arate contractor  and  that  the 
lessees  were  not  liable  for  injuries 
sustained  in  his  service  by  his 
employees.  Grant  v.  Shaw  (1872), 
9  Scot.  L.  R.  254.  Other  cases 
cited  in  65  L.  R.  A.  467. 

-'"  BuRBANK  V.  Bethel,  etc.,  Co. 
(1883),  75  Ale.  373;  46  Amer.  Rep. 
400. 

^°  Brown  v.  Rockwell,  etc.,  Co. 
(1906),  132  Iowa  631;  110  N.  VV. 
12.    See  ante,  n.  3. 


94 


INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


franchise,  but  can  only  act  through  its  governing  body,  the 
board  of  trustees.  -'"  An  Indiana  case  holds  that  a  munici- 
pality is  not  relieved  from  liability  by  the  fact  that  its  elec- 
tric light  plant  is  under  the  control  of  a  commission  ap- 
pointed by  the  city  council.  In  the  management  and  control 
of  the  enterprise  the  commission  acts  in  behalf  of,  and  repre- 
sents, the  municipality  and  the  latter  is  liable  for  the  negli- 
gent acts  of  the  commission. ^^'^ 

Sec.  39.     Effect  of  Death  as  Test. 

The  prevailing  opinion  in  a  New  York  case  holds  that  a 
mere  contract  to  do  certain  work  in  repairing  a  house  for 
a  stipulated  price  does  not  create  the  relation  of  master  and 
servant  so  as  to  relieve  the  personal  representatives  of  the 
one  for  whom  the  work  was  done,  from  liability  for  work 
performed  after  his  death,  even  though  the  house  is  specifi- 
cally devised  and  the  personal  representatives  have  no  in- 
terest  therein.  -'^      "Inasmuch   as   agency    is   ordinarily   a 


^"Davoust  v.  City,  etc.,  (1906), 
149  Cal.  69;  84  Pac.  760;  9  Am. 
&  Eng.   Ann.   Cas.  847. 

^'Richmond  v.  Lincoln  (1906), 
167  Ind.  468;  79  N.  E.  445.  Where 
the  statute  empowering  a  city  to 
operate  an  electric  light  plant 
also  creates  a  commission  to  con- 
trol it  and  names  the  members 
of  the  commission,  this  is  not 
enough  in  itself  to  create  the  com- 
mission a  corporation  separate 
from  the  municipality,  and  the 
members  of  the  commission  are 
still  servants  of  the  city  and  may 
make  it  liable  for  their  acts  of 
negligence.  Fisher  v.  New  Berne 
(1906),  140  N.  Car.  506;  53  S. 
E.  342.  By  an  English  statute,  har- 
bor commissioners  were  empow- 
ered   to    build    or    provide    steam 


tugs  for  towing  vessels  into  and 
out  of  the  harbor,  for  compensa- 
tion agreed  upon ;  plaintiff's  vessel 
was  damaged  through  the  negli- 
gence and  unskillfulness  of  a  tug's 
master  and  crew,  while  being 
towed  into  the  harbor;  for  their 
negligence  the  commissioners 
were  held  not  liable.  Cuthbertson 
V.  Parsons  (1852),  12  C.  B.  304. 
^"Russell  V.  Buckhout  (1895), 
87  Hun,  46;  34  N.  Y.  Supp.  271; 
Dykman,  J.,  dissenting  on  the 
ground  that  a  contractee's  death 
dissolved  the  contract,  and  that 
the  administratrix  was  liable  only 
for  the  amount  due  at  decedent's 
death.  Cf.,  Lacy  v.  Getman 
(1890),  119  N.  Y.  112;  23  N.  E. 
452 ;  6  L.  R.  A.  728 ;  16  Amer.  St. 
Rep.  806. 


WHO    ARE    INDEPENDENT    CONTRACTORS. 


95 


relation  and  not  a  contract,  the  death  of  either  party  termi- 
nates the  relation  and  all  rights  incident  to  it  except  so  far 
as  the  agency  has  already  been  executed.  Even  where  the 
agency  is  made  irrevocable  during  life  by  clothing  it  in  the 
form  of  a  perfect  contract,  it  will  ordinarily  be  taken  as  an 
implied  term  in  the  contract  that  it  is  to  terminate  on  the 
death  of  either  party.  Apparently  the  application  of  the 
maxim  that  the  acts  of  the  servant  are  the  acts  of  the  master 
would  also  result  in  the  same  conclusion;  for  how  can  an 
act  be  attributed  to  a  dead  man?"  ^'^ 

*»  2  Street's  Legal  Liab.,  491. 


CHAPTER    II. 


General  Rule  of  Employer's  Liability, 


SECTION  SECTION 

45.  General  rule  stated.  53. 

46.  Basis  of  non-liability. 

47.  Early  rule  stated.  54. 

48.  Bush  v.  Stein  man.  55. 

49.  Basis  of  early  rule  discussed. 

50.  Distinction    as    to    real    and  56. 

personal  property. 

51.  Present  rule  and  tendency.  57. 

52.  Effect  of  non-interference.  58. 


General  rule  as  to  liability  of 
municipalities. 

Same — As  to  school  districts. 

Same — As  to  railroad  com- 
panies. 

Same — As  to  other  under- 
takings. 

Same — As   to   subcontractors. 

General  rule  after  acceptance. 


Sec.  45.     General  Rule  Stated. 

In  the  case  of  a  servant  the  employer  is  legally  respon- 
sible for  the  acts  of  the  employee  done  in  the  course  of  the 
business ;  in  the  case  of  an  independent  contractor  he  is  not 
generally  responsible  for  such  acts.  Subject  to  certain 
exceptions  enumerated  hereafter,  one  who  lets  a  contract 
for  work  and  retains  no  control  over  the  work,  or  the 
methods  of  doing  it,  is  not  liable  for  the  negligence  or  other 
wrong  of  the  contractor.  ^  It  is  the  well  settled  general 
rule,  both  in  this  country  and  in  England,  that  a  person  who 


^Huff,  Agcy.,  Sec.  218,  citing 
Lawrence  v.  Shipman  (1873),  39 
Conn.  586;  Blake  v.  Ferris  (1851), 
5  N.  Y.  48;  55  Amer.  Dec.  304; 
Hexamer  v.  Webb  (1896),  101  N. 
Y.  377;  4  N.  E.  755;  54  Amer. 
Rep.  703;  Chase  Cas.  Torts,  240; 
Atlanta,  etc..  Railroad  v.  Kim- 
BERLY  (1893),  87  Ga.  161 ;  13  S.  E. 
277;  27  Amer.  St.  Rep.  231;  Fos- 
ter V.    Wadsworth,   Rowland   Co. 

96 


(1897),  168  Ills.  514;  48  N.  E. 
163;  Singer  Manufacturing  Co. 
V.  Rahn  (1889),  132  U.  S.  518; 
Huff.  Cas.  Agcy.  9;  Halliday  v. 
National  Telephone  Co.  (1891), 
1  Q.  B.  221.  See  Sadler  v.  Ilen- 
lock  (1855),  4  E.  &  B.  570;  Brack- 
ett  V.  Lubke  (1862),  4  Allen 
(Mass.),  138;  81  Amer.  Dec.  694, 
"for  cases  open  to  doubt." 


GENERAL   RULE   OP   EMPLOYER'S   LLVBILITY. 


97 


employs  an  independent  contractor  to  do  work  for  him  is 
not  liable  for  the  wrongful  acts  or  neglect  of  the  contractor 
or  his  servants  in  the  performance  of  the  work,  where  the 
work  to  be  done  under  the  contract  is  lawful.-  "The 
modern  doctrine  seems  to  be  that,  if  one  engages  with  a 
contractor  to  do  an  act  which  may  be  done  in  a  lawful  man- 
ner, and  the  contractor  in  doing  it  unnecessarily  commits  a 
nuisance,  whereby  injury  results  to  a  third  person,  the  em- 
ployer will  not  be  liable."  ^    "The  general  rule  is  that  where 


'Tiff.  Dom.  Rels.,  509,  citing 
Reedie  v.  Railway  Co.  (1849), 
4  Exch.  244;  6  Eng.  R.  &  Corp. 
Cas.  184;  4  Am.  Neg.  R.  438,  n.; 
9  Id.  122,  n. ;  Harrison  v.  Collins 
(1878),  86  Pa.  St.  153;  27  Amer. 
Rep.  699;  Cuff  v.  R.\ilro.\d  Co. 
(1870).  35  N.  J.  L.  17;  10  Amer. 
Rep.  209;  16  Am.  Neg.  Cas.  668, 
n. ;  HiLLiARD  V.  Richardson 
(1855),  3  Gray  (Mass.),  349;  63 
Amer.  Dec.  743;  King  v.  Rail- 
road Co.  (1876),  66  N.  Y.  181 ;  23 
Amer.  Rep.  37;  Blake  v.  Ferris, 
supra;  Stevens  v.  Armstrong 
(1852).  6  N.  Y.  435;  Hexamer  v. 
Webb,  supra;  Eaton  v.  Railway 
Co.  (1871),  59  Me.  520;  8  Amer. 
Rep.  430;  DeForest  v.  Wright 
(1852),  2  Mich.  368;  Clark  v. 
Railroad  Co.  (1854),  28  Vt.  103; 
Bennett  v.  Truebody  (1885),  66 
Cal.  509;  6  Pac.  329;  56  Amer. 
Rep.  117;  13  Am.  Neg.  Cas.  517,  n. 

'  Thomps.  Neg..  Sec.  645,  citing 
Peachey  v.  Rowland  (1853),  13 
C.  B.  182.  "If  an  independent  con- 
tractor is  employed  to  do  a  law- 
ful act,  and  in  the  course  of  the 
work  he  or  his  servants  commit 
some  casual  act  of  wrong  or  neg- 
ligence, the  employer  is  not  li- 
able." Pickard  v.  Smith  (1861),  10 


C.  B.  (N.  S.),  470;  7  Am.  Neg. 
R.  158,  n.;  8  Id.  264,  n.  '"If  it  is 
conceded  or  established  that  the 
tort-feasor  was  an  independent 
contractor,  the  non-liability  of  the 
employer  becomes  an  inference  in 
point  of  law.  if  the  only  reason- 
able deduction  from  the  circum- 
stances as  shown  is,  that  the  in- 
jury in  question  resulted  proxi- 
mately and  solely  from  the 
negligent  manner  in  which  the 
stipulated  work  was  performed, 
or  from  a  wrongful  act  which  was 
neither  a  necessary  nor  a  probable 
incident  of  that  work."  Note  to 
Salliotte  v.  King,  etc.,  Co.  (1903, 
58  C.  C.  A.  466,  122  Fed.  Rep. 
37&).  cited  in  65  L.  R.  A.,  at  p. 
641.  citing  cases.  It  has  been  held 
that  where  the  evidence  is  sus- 
ceptible of  the  construction  that 
the  person  employed  was  exercis- 
ing an  independent  employment 
under  the  contract,  it  is  error  to 
refuse  a  charge  to  the  effect  that, 
if  the  accident  was  the  result  of 
the  negligence  of  that  person  or 
of  his  servants,  the  employer  is 
not  liable.  Potter  v.  Seymour 
(1859).  4  Bosw.  140.  This  may  be 
too  broad  an  assertion. 


98  INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  owner  employs  a  careful,  skillful  and  competent  builder 
or  contractor  to  erect  his  building,  and  surrenders  the  pos- 
session of  the  premises  for  that  purpose,  then  in  such  case 
the  owner  is  not  liable  for  an  injury  occurring  to  a  stranger 
by  the  negligence  or  default  of  the  contractor  or  his  imme- 
diate servants  or  employees  engaged  in  doing  the  work."  ^ 
A  leading  authority  declares  that  "in  general  it  is  entirely 
competent  for  one  having  any  particular  work  to  be  per- 
formed, to  enter  into  an  agreement  with  an   independent 
contractor  to  take  charge  of  and  do  the  whole  work,  em- 
ploying his  own  assistants,  and  being  responsible  only  for 
the  completion  of  the  work  as  agreed.     In  such  case,  as  a 
general  rule,  the  contractor,  for  the  time  being,  becomes  an 
independent  principal,  whose  servants  are  exclusively  his, 
and  not  those  of  the  employer  he  contracts  with;  and  the 
contractor  is  in  no  such  sense  the  servant  of  his  employer  as 
to  give  to  others  rights  against  the  employer  growing  out  of 
the  negligence  of  the  contractor  or  of  his  servants."  ^ 


Ssc.  46.     Basis  of  Non-liability. 

"The  modern  decisions  have  placed  two  limitations  upon 
the  liability  of  the  master  which  deserve  notice.  The  fellow 
servant  doctrine  relieves  the  master  from  liability  where  the 
person  injured  is  a  fellow  servant  of  the  tort-feasor.  .  .  . 
The  other  limitation  on  the  master's  liability  is  found  in 


'Richmond  v.  Sitterding 
(1903),  101  Va.  354;  43  S.  E.  562; 
99  Amer.  St.  879;  16  Am.  Neg. 
Rep.  609,  n. ;  65  L.  R.  A.  445,  cit- 
ing cases.  See  also  cases  cited  in  1 
L.  R.  A.  (N.  S.),  285,  and  see  Subd. 
vii,  c,  in  note  to  Salliotte  v.  King 
Bridge  Co.,  supra,  at  p.  620. 

'  Cooley  on  Torts,  Students'  Ed., 
Sec.  260,  citing  numerous  cases, 
q.  V.  The  appellant's  brief  in  Cam- 


eron, etc.,  Co.  V.  Anderson  (1904, 
Tex.),  reported  in  1  L.  R.  A.  (N. 
S.),  198  (reported  also  in  16  Am. 
Neg.  R.  599,  608),  cites  cases  to 
the  effect  that  defendant  company- 
was  not  liable  for  the  acts  of  its 
independent  contractor,  including 
Taylor  v.  Dunn  (1891),  80  Tex. 
652;  16  S.  W.  732;  Clapp  v.  Kemp 
(1877),   122  Mass.  481. 


GENERAL   RULE  OP  EMPLOYER'S  LLViilLlTY.  99 

those  cases  where  an  independent  contractor  is  employed. 
Here  the  person  who  lets  the  contract  is  not  liable  for  the 
torts   of  the   servants   employed   by   the   contractor.      The 
reason   is  obvious.      The  conductor,   or  one   who  lets  the 
contract,  has  no  control  over  the  employee  of  the  contractor, 
and  hence  is  not  treated  as  their  master.     He  is  only  con- 
cerned with  tlie  finished  product  of  the  labor,  and  the  con- 
tractor, both  in  fact  and  in  theory,  is  the  master  of  those 
whom  he  employs.     Simple  as  this  appears,  the  principle 
in  question  was  violated  in  probably  the  first  case  presenting 
facts  of  this  kind.      (Bush  v.   Stein  man,   1799,   1   B.  & 
P.  404.)     But  that  case  was  soon  discredited,  and  the  law 
is  now  well  settled  that  the  man  who  has  immediate  con- 
trol or  the  right  of  control  over  the  work  is  the  master."  ^ 
According  to  Prof.   Burdick,  "the  liability  of  a  master 
for  the  torts  of  his  servant  rests  upon  considerations  of 
practical  expediency.    A  man  is  bound  to  manage  his  affairs 
with  a  due  regard  for  the  safety  of  the  persons  and  prop- 
erty of  his  fellows.     But  suppose  he  turns  over  the  man- 
agement of  certain  of  his  transactions  to  persons  who  un- 
dertake to  accomplish  a  prescribed  result,  but  who  are  not 
otherwise  subject  to  his  control.     Must  he  answer  for  their 
torts  which  are  incident  to  the  transaction?     He  does,  in- 
deed, 'set  the  whole  thing  in  motion;'  but  such  persons  are 
not  his  servants  in  the  ordinary  sense  of  that  term.     He 
does  not  direct  and  control  their  acts,  and  has  no  right  to 
command  obedience  from  them.     They  are  the  principals 
in  the  work  which  they  have  in  hand.     For  damages  in- 
flicted by  their  misconduct  or  the  misconduct  of  those  under 
their  control,  they  are  liable,  and  the  law  does  not  permit 

•2  Street  Legal   Liab.,  471-472.  Richardson    (1855),    3    Gray 

citing  Reedie  v.   London,  etc..   R.  (Mass.),  349;  63  Amcr.  Dec.  743; 

(1849),  4  Exch.  404;  6  Eng.  R.  &  Pendleton  v.  Greenhough    (1875), 

Corp.    Gas.   184;   4  Am.   Neg.   R.  1  Q.  B.  D.  36. 
438.  n.;  9  Id.   122,  n. ;   Hillard  v. 


100       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

the  injured  person  to  go  back  of  them  in  the  line  of  causa- 
tion, save  in  exceptional  cases  to  be  noted  hereafter."  "^  As 
is  sometimes  judicially  declared,  "there  can  not  be  more 
than  one  superior  legally  responsible."  «  The  doctrine  of 
an  employer's  non-liability  has  also  been  said  to  rest  upon 
"the  ground  that  a  contractor,  as  between  him  and  his  em- 
ployer, is  responsible  only  for  the  fulfillment  of  his  agree- 
ment, and  pending  the  performance  of  the  work,  is  to  a 
certain  extent  substituted  for  the  party  for  whom  the  work 
is  to  be  performed."  ® 


'Burd.,  Torts,  133.  "In  ascer- 
taining who  is  liable  for  the  act  of  a 
wrong-doer,  you  must  look  to  the 
wrong-doer  himself  or  to  the  first 
person  in  the  ascending  line  who 
is  the  employer  and  has  control 
over  the  work.  You  cannot  go 
further  back  and  make  the  em- 
ployer of  that  person  liable."  Mur- 
ray V.  Currie  (1870),  L.  R.,  6  C. 
P.  24;  40  L.  J.,  C  P.  26. 

'Painter  v.  Mayor  (1863),  46 
Pa.  213;  Heidenag  v.  City  of  Phil- 
adelphia (1895),  168  Pa.  72;  21 
Atl.  1063. 

*  Reynolds  v.  Braithwaite  (1889), 
131  Pa.  416;  18  Atl.  1110.  The 
doctrine  of  an  employer's  non- 
liability has  also  been  referred  to 
as  an  application  of  the  general 
principle  that  where  an  indepen- 
dent, responsible  cause  is  inter- 
posed between  an  alleged  cause 
and  the  injury,  the  juridical  con- 
nection between  that  alleged  cause 
and  the  injury  is  broken.  Whar- 
ton on  Neg.,  Sec.  482.  In  a  note 
to  a  leading  case,  a  distinguished 
annotater,  referring  to  the  basis 
of    reserving    control,    contractual 


obligation  and  intervening  efficient 
cause  as  the  tests  of  liability,  says : 
"None  of  these  explanations,  how- 
ever, is  adequate  for  the  purposes 
of    a    fundamental    inquiry,    since 
they  presuppose  that  an  affirmative 
answer  should  be  given  to  what  is 
really  the  ultimate  question  to  be 
decided,  viz.,  the  permissibility  of 
allowing  one  person  to  depute  to 
another  a  particular  piece  of  work, 
on    terms    which    will    have    the 
effect  of  relieving  the  former  from 
the  obligation  of  seeing  that  the 
work  is  executed  with  reasonable 
care    and    skill.      It    seems    clear 
from  the  not  very  numerous  au- 
thorities which  bear  directly  upon 
this  question  that  the  real,  and  in 
fact  only,  available  basis  for  the 
doctrine    which    declares    such    a 
delegation  of  functions  to  be,  un- 
der certain   circumstances,   allow- 
able  is    public   policy."      Note   by 
Mr.   C.  B.  Labatt,  to  the  leading 
case  of  Salliotte  v.  King  Bridge 
Co.    (1903,   Va.),   reported    in   65 
L.  R.  A.     "It  seems  clear,  how- 
ever," he  continues,  "that  the  rule 
as  to  the  non-liability  of  employ- 


GENERAL   RULE   OF   EMPLOYER  S   LIABILITY. 


101 


Sec.  47.     Early  Rule  Stated. 

At  the  outset,  it  was  held  that  a  landowner  was  liable 
for  ALL  injuries  resulting  from  the  negligence  of  employees 
engaged  in  executing  work  on  his  land,  though  such  work 
was  done  by  the  servant  of  one  who  had  contracted  to  do 
the  work,  and  this  general  rule  prevailed  for  a  while  in  a 
few  jurisdictions.  ^'' 


ers  has  been  formulated  rather 
with  reference  to  their  interests 
than  with  reference  to  those  of 
possible  sufifcrers  from  the  torts 
of  the  contractors.  .  .  .  The 
juridical  situation,  therefore, 
would  seem  to  be  simply  this — 
that  the  considerations  of  expe- 
diency which  according  to  the 
most  generally  accepted  theory, 
constitute  the  only  rational  foun- 
dation of  the  rule  which  declares 
a  master  to  be  liable  for  the  torts 
of  his  servant,  are  deemed  to  be 
inoperative,  or  to  be  superseded 
and  overridden  by  other  and  an- 
tagonistic considerations  of  expe- 
diency, in  some  classes  of  cases 
where  the  person  employed  is 
exercising  an  independent  busi- 
ness'' (p.  634,  citing  Gregory  v. 
Hill  (1869),  8  Sc.  Sess.  Cas.,  3d 
series  282;  Farwell  v.  Boston, 
ETC.,  Railroad  (1842),  4  Met., 
Mass.  55;  38  Amer.  Dec.  339; 
Chicago,  etc..  Railroad  v.  Mo- 
RANDA  (1879),  93  Ills.  314;  34 
Amer.  Rep.  168;  Coon  v.  Syra- 
cuse, etc.,  Railroad  (1849),  6 
Barb.  (N.  Y.),  231,  and  other 
cases). 

"BusTi  V.  Steinman  (1799),  B. 
&  P.  404,  reported  in  full  in  the 
next  section  of  the  text ;  followed 
in   Sly  V.  Edgely   (1806),  6  Esp. 


6;  Randleson  v.  Murray  (1838),  8 
A.  &  E.  109 ;  14  Am.  Neg.  Cas.  75 ; 
Lowell  v.  Boston,  etc.  Railroad 
(1839),  23  Pick.  (Mass.),  24;  34 
Amer.  Dec.  33;  New  York  v. 
Bailey  (1845),  2  Denio  (N.  Y.), 
433 ;  Stone  v.  Cheshire  Railroad 
(1849),  19  N.  H.  427;  51  Amer. 
Dec.  192;  Wiswall  v.  Brinson 
(1849),  10  Ired.  L.  (N.  C),  554; 
Memphis  v.  Lasscr  (1849),  9 
Humph.  (Tenn.),760;  Nashville  v. 
Brown  (1871),  9  Heisk.  (Tenn.), 
1;  24  Amer.  Rep.  289;  Silvers  v. 
Nerdlinger  (1868),  30  Ind.  53; 
Mej-ers  v.  Snider  (1848),  Bright 
(Pa.)  489.  "The  doctrine  now 
under  discussion  is  one  of  com- 
paratively recent  growth.  An  ex- 
amination of  the  language  used  by 
the  judges,  the  authorities  cited 
and  the  arguments  relied  upon  by 
the  defendant's  counsel,  in  the 
earliest  of  the  reported  cases  on 
the  subject,  which  was  decided 
1799,  will  make  it  apparent  that 
at  that  date  the  responsibility  of 
an  employer  for  the  torts  of  a 
contractor  was  deemed  to  be  the 
same  in  kind  and  degree  as  his 
responsibility  for  the  torts  of  a 
servant  or  an  agent."  Note  to 
Salliotte  v.  King  Bridge  Co. 
(1903,  Va.),  65  L.  R.  A.  624.  In 
a  case  decided  shortly  after  Bush 


102       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.   48.     Bush  v.   Steinman,   1   Bosanquet  &  Puller,   404. 
(Easter  Term,  1799,  38  Geo.  III.) 

These  two  actions  were  on  the  case  against  the 
defendant  for  causing  a  quantity  of  lime  to  be 
placed  on  tlic  high  road,  by  means  of  which  the 
plaintiff  and  his  wife  were  overturned  and  much 
hurt,  and  the  chaise,  in  which  they  then  were, 
considerably  damaged.     Plea :  Not  Guilty. 

The  two  actions  came  on  together  to  be  tried 
before  Eyre,  Ch.  J.,  at  the  Guildhall  Sittings  after 
last    Hilary    term,    when    the    following    circum- 
stance    appeared     in     evidence.     The     defendant 
having  purchased  a  house  by  the  road  side   (but 
which  he  had  never  occupied),  contracted  with  a 
surveyor  to  put  it  in  repair  for  a  stipulated  sum; 
a  carpenter  having  a  contract  under  the  surveyor 
to  do  the  whole  business,  employed  a  brick-layer 
under  him,  and  he  again  contracted  for  a  quantity 
of  lime  with  a  lime  burner,  by  whose  servant  the 
lime  in  question  was  laid  in  the  road.     The  Lord 
Chief  Justice  was  of  opinion  that  the  defendant 
was  not  answerable  for  the  injury  sustained  by 
the   plaintiff   under   the   above   circumstance,   but 
in  order  to  save  expense,  a  verdict  was  taken  for 
the  plaintiff  for  12  £,  12  s.  with  liberty  to  the  de- 
fendant to  move  to  have  a  nonsuit  entered. 

Accordingly  a  rule  nisi  for  that  purpose  having  been  ob- 
tained on  a  former  day, 

V.  Steinman,  supra,  a  verdict  was  down  of  certain  water  pipes  in  a 

affirmed    against    a    water    works  public    street,   Lord    Ellenborough 

company,   for  an   injury  resulting  stating  that  he  had  "no  doubt"  as 

to    the    plaintiff    from    the    negli-  to   the   defendant's   liability;    Ma- 

gence  of  men  employed  by  certain  thews  v.   West  London,   etc.,   Co. 

pipe  layers   with   whom  the  com-  (1813),  3  Camp.  403. 
pany  had  contracted  for  the  laying 


GENERAL   RULE   OP   EMPLOYER'S   LLVBILITY.  103 

Cockell  and  Shepherd,  Serjts.,  now  shewed  cause.  The 
question  is  not  whether  this  action  might  not  have  been 
brought  against  some  other  person,  but  whether  it  cannot 
be  maintained  against  the  present  defendant.  It  is  suffi- 
ciently estabhshed  that  masters  are  civilly  answerable  for 
the  neglect  of  their  servants,  though  absent  at  the  time 
of  the  injury  committed.  Hern  v.  Nicholls,  1  Salk.,  289. 
Jones  V.  Hart,  2  Salk.,  441.  So  it  is  with  carriers  and 
owners  of  ships.  The  house  in  this  case  was  undergoing 
a  repair  for  the  defendant,  and  the  act  which  caused  the 
injury  complained  of,  was  an  act  done  for  his  benefit,  and 
in  consequence  of  his  having  authorized  others  to  work 
for  him.  Though  the  person  by  whose  neglect  the  accident 
happened  was  the  immediate  servant  of  another,  yet,  for 
the  benefit  of  the  public,  he  must  be  considered  as  the 
servant  of  this  defendant.  The  maxim  in  law  is  respondeat 
superior,  and  accordingly  Lord  Kenyon  in  a  case  strongly 
analogous  to  the  present  said,  'Tn  all  these  cases  I  have 
ever  understood  tliat  the  action  must  either  be  broueht 
against  the  hand  committing  the  injury  or  against  the 
owner  for  whom  the  act  was  done."  Stone  and  another  v. 
Cartivright,  6  Term  Rep.,  411.  If  this  defendant  be  not 
liable,  the  plaintifif  may  be  obliged  to  sue  all  the  parties 
who  have  subcontracts  in  this  case,  before  he  can  obtain 
any  redress  for  the  injury  he  has  sustained. 

LeBlanc  and  Marshall,  Serjts.,  contra.  The  plaintiff 
contends,  first,  that  a  person  is  liable  for  the  consequences 
of  every  act  done  for  his  benefit;  at  least  if  the  act  take 
place  on  his  own  premises;  secondly,  that  he  is  answerable 
for  any  injuries  committed  by  tlnxse  whom  he  employs, 
if  the  injuries  happen  in  the  course  of  carrying  into  exe- 
cution the  commission  with  which  they  are  charged.  First, 
it  is  clear  that  the  cause  of  action  did  not  in  this  case  arise 
on  the  defendant's  premises,  the  complaint  being,  that  a 
quantity  of  lime  which  should  have  been  placed  there,  was 


104       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

actually  laid  in  the  high-road;  that  being  the  case,  there 
is  no  authority  to  shew  that  the  defendant  is  liable,  merely 
because  the  act  from  which  the  injury  arose  was  done  for 
his  benefit.    If  that  general  proposition  were  true,  it  might 
be  contended,  that  the  defendant  must  have  answered  for 
any  accident  which  might  have  happened  during  the  prepa- 
ration of  the  lime   in  the  lime-burner's  yard.      Secondly, 
The  liability  of  the  principal  to  answer  for  his  agents,  is 
founded   in   the  superintendence  and  control   which  he   is 
supposed  to  have  over  them.     1  Black.  Com.,  431.     In  the 
civil  law  that  liability  was  confined  to  the  person  standing 
in  the  relation  of  paterfamilias  to  the   person  doing  the 
injury.     Inst,  lib.,  4,  tit.  5,  §  1,  Dig.  lib.  9,  tit.  3.      And 
though  in  our  law  it  has  been  extended  to  cases  where  the 
agent  is  not  a  mere  domestic,  yet  the  principle  continues 
the  same.     Now,  clearly  it  was  not  in  the  power  of  this 
defendant  to  control  the  agent  by  whom  the  injury  to  this 
plaintiff  was  effected.     He  was  not  employed  by  the  de- 
fendant, but  by  the  lime-burner;  nor  was  it  in  the  defend- 
ant's power  to  prevent  him,  or  any  one  of  the  intermediate 
subcontracting  parties,  from  executing  the  respective  parts 
of  that  business  which  each  had  undertaken  to   perform. 
The  defendant's   interference  would   have  amounted   to  a 
breach  of  his  own  contract  with  the  surveyor,  by  which 
the  latter  was  empowered  to  employ  such  persons  as  he 
might  think  proper.      So  little  connection   was   there  be- 
tween  the   defendant   and    the    various   persons    employed 
in  the  work  that  he  could  have  maintained  no  action  against 
any  one  of  them   for  having  ill  performed  his  part,   but 
must  have  resorted  to  the  surveyor  with  whom  his  contract 
was   made.      With    respect  to   Stone   v.    Cartwright,    the 
owner  of  the  mine  was  there  said  to  be  answerable  for  the 
negligence  of  the  persons  employed  by  the  steward,  but 
it  is  to  be  observed,  that  he  was  also  answerable  to  them 
for  their  wages.     In  Lane  v.  Sir  Robert  Cotton,  12  Mod. 


GENERAL   RULE   OP   EMPLOYER'S   LLVBILITY.  105 

488,  9,  Holt.  Ch.  J.,  said  that  "the  reason  why  a  principal 
shall  answer  for  his  deputy  is,  because  as  he,  as  principal, 
has  power  to  put  him  in,  so  he  has  power  to  put  him  out 
without  shewing  any  cause."  So  in  Michael  v.  Alcstree, 
(1677)  2  Lev.  172,  it  was  held  that  an  action  might  be 
maintained  against  a  master  for  damage  done  by  his  ser- 
vant to  the  plaintiff,  in  exercising  his  horses  in  an  improper 
place,  though  he  was  absent,  because  it  should  be  intended 
that  the  master  sent  the  servant  to  exercise  the  horses 
there.  But  if  a  servant  who  is  ordered  to  do  a  lawful  act 
exceed  his  authority,  and  thereby  commit  an  injury,  the 
master  is  not  liable.  Kingston  v.  Booth,  Skin.  228,  Middle- 
ton  V.  Fowler,  1  Salk.  282. 

Eyre,  Ch.  J.  At  the  trial  I  entertained  great  doubts 
with  respect  to  the  defendant's  liability  in  this  action.  He 
appeared  to  be  so  far  removed  from  the  immediate  author 
of  the  nuisance,  and  so  far  removed  even  from  the  person 
connected  with  the  immediate  author  in  the  relation  of 
master,  that  to  allow  him  to  be  charged  for  the  injury 
sustained  by  the  plaintiff  seemed  to  render  a  circuity  of 
action  necessary.  Upon  the  plaintift''s  recovery,  the  de- 
fendant would  be  entitled  to  an  action  against  the  surveyor, 
the  surveyor  and  each  of  the  subcontracting  parties  in  suc- 
cession to  actions  against  the  persons  with  whom  they 
immediately  contracted,  and  last  of  all  the  lime-burner 
would  be  entitled  to  the  common  action  against  his  own 
servant.  I  hesitated,  therefore,  in  carrying  the  responsi- 
bility beyond  the  immediate  master  of  the  person  who 
committed  the  injury,  and  I  retained  my  doubts  upon 
the  subject,  till  I  had  heard  the  argument  on  the  part  of 
the  plaintiff,  and  had  an  opportunity  of  consulting  with  my 
brothers.  They,  including  ]\Ir.  Justice  Buller,  are  satisfied 
that  the  action  will  lie,  and  upon  reflection,  I  am  disposed 
to  concur  with  them ;  though  I  am  ready  to  confess  that  I 


106       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

find  great  difficulty  in  stating  with  accuracy  the  grounds 
on  which  it  is  supported.     The  relation  between  master  and 
servant,     as    commonly    exemplified    in    actions    brought 
against  the  master,  is  not  sufficient ;  and  the  general  propo- 
sition,  that  a  person  shall  be  answerable  for  any   injury 
which  arises  in  carrying  into  execution  that  which  he  has 
employed  another  to  do,  seems  to  be  too  large  and  loose. 
The    principle    of    Stone    v.    C artzvright ,^^    with    the    de- 
cision of  which  I  am  well  satisfied,  is  certainly  applicable 
to   this   case ;  but   that  of  Littlcdale  v.   Lord   Lonsdale  ^^ 
comes  much  nearer.     Lord  Lonsdale's  colliery  was  worked 
in  such  a  manner  by  his  agents  and  servants  (or  possibly 
by  his  contractors,  for  that  would  have  made  no  difference), 
that  an  injury  was  done  to  the  plaintiff's  house,  and  his 
Lordship  was  held  responsible.    Why?    Because  the  injury 
was  done  in  the  course  of  his  working  the  colliery ;  whether 
he  worked  it  by  agents,  by  servants,  or  by  contractors,  still 
it  was  his  work;  and  though  another  person  might  have 
contracted  with  him  for  the  management  of  the  whole  con- 
cern without  his  interference,  yet  the  work  being  carried 
on   for  his  benefit,   and  on  his   property,   all   the  persons 
employed   must   have  been   considered   as   his   agents   and 
servants,  notwithstanding  any  such  arrangement;  and  he 
must  have  been  responsible  to  all  the  world,  on  the  principle 
of  sic  utere  tuo  ut  alienum  non  laedas.     Lord  Lonsdale 
having  empowered  the  contractor  to  appoint  such  persons 
under  him   as  he  should  think  fit,  the  persons  appointed 
would  in  contemplation  of  law  have  been  the  agents  and 
servants  of  Lord  Lonsdale.     Nor  can  I  think  it  would  have 
made  any  difference,  if  the  injury  complained  of  had  arisen 
from  his  Lordship's  coals  having  been  placed  by  the  work- 
men on  the  premises  of  Mr.  Littledale,  since  it  would  have 

"  Stone  V.  Cartwright  ( ),  6  '-Littledale    v.    Lord    Lonsdale 

Term  Rep.  4n.  ( ),  2  H.  Bl.  267. 


GENERAL   RULE  OP   EMPLOYER'S   LLViliLlTY.  107 

been  impossible  to  distinguish  such  an  act  from  the  general 
course  of  business  in  which  they  were  engaged,  the  whole 
of  which  business  was  carried   on   either  by  the  express 
direction  of  Lord  Lonsdale,  or  under  a  presumed  authority 
from  him.     The  principle  of  this  case,  therefore,  seems  to 
afford  a  ground  which  may  be  satisfactory  for  the  present 
action,  though   I  do  not   say  that  it  is  exactly  in  point. 
According  to  the  doctrine  cited  from  Blackstone's  Commen- 
taries, if  one  of  a  family  "layeth  or  casteth"  anything  out 
of  the  house  which  constitutes   a  nuisance,   the  owner   is 
chargeable.      Suppose,   then,   that   the  owner  of   a   house, 
with  a  view  to  rebuild  or  repair,  employ  his  own  servants 
to  erect  a  hord  in  the  street  (which  being  for  the  benefit 
of  the  public  they  may  lawfully  do),  and  they  carry  it  out 
so  far  as  to  encroach  unreasonably  on  the  highway,  it  is 
clear  that  the  owner  would  be  guilty  of  a  nuisance;  and  I 
apprehend  there  can  be  but  little  doubt  that  he  would  be 
equally  guilty  if  he  had  contracted  with  a  person  to  do  it  for 
a  certain  sum  of  money,  instead  of  employing  his  own  serv- 
ants for  the  purpose ;  for,  in  contemplation  of  law,  the  erec- 
tion of  the  hord  would  equally  be  his  act.     If  that  be  estab- 
lished, we  come  one  step  nearer  to  this  case.     Here  the 
defendant  by  a  contractor,  and  by  agents  under  him,  was 
repairing  his  house;  the  repairs  were  done  at  his  expense, 
and  the  repairing  was  his  act.     If,  then,  the  injury  com- 
plained of  by  the  plaintiffs  was  committed   in  tlie  course 
of  making  those  repairs,  I  am  unable  to  distinguish  the  case 
from  that  of  erecting  the  hord,  or  from  Littledale  v.  Lord 
Lonsdale,  unless,  indeed,  a  distinction  could  be  maintained 
(which,  however,  I  do  not  think  possible),  on  the  ground 
of  the  lime  not  having  been  delivered  on  the  defendant's 
premises,  but  only  at  a  place  close  to  them,  with  a  view  to 
being  carried  on  to  the  premises  and  consumed  there.     My 
Brother  Buller  recollects  a  case  which  he  would  have  stated 
more  particularly,  had  he  been  able  to  attend.     It  was  this : 


108       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

A  master  having  employed  his  servant  to  do  some  act, 
the  ser\^aiit  out  of  idleness  employed  another  to  do  it,  and 
that  person  in  carrying  into  execution  the  orders  which  had 
been  given  to  the  servant,  committed  an  injury  to  the  plain- 
tiff, for  which  the  master  was  held  liable.  The  responsi- 
bility was  thrown  on  the  principal  from  whom  the  authority 
originally  moved.  This  determination  is  certainly  highly 
convenient  and  beneficial  to  the  public.  Where  a  civil  in- 
jury of  the  kind  now  complained  of  has  been  sustained, 
the  remedy  ought  to  be  obvious,  and  the  person  injured 
should  have  only  to  discover  the  owner  of  the  house  which 
was  the  occasion  of  the  mischief;  not  to  be  compelled  to 
enter  into  concerns  between  that  owner  and  other  persons, 
the  inconvenience  of  which  would  be  more  heavily  felt  than 
any  which  can  arise  from  a  circuity  of  action.  Upon  the 
whole  case,  therefore,  though  I  still  feel  a  difficulty  in  stating 
the  precise  principle  on  which  the  action  is  founded,  I  am 
satisfied  with  the  opinion  of  my  Brothers. 

Heath,  J.  I  found  my  opinion  on  this  single  point, 
viz. :  That  all  the  subcontracting  parties  were  in  the  employ 
of  the  defendant.  It  has  been  strongly  argued  that  the 
defendant  is  not  liable,  because  his  liability  can  be  founded 
in  nothing  but  the  mere  relation  of  master  and  servant; 
but  no  authority  has  been  cited  to  support  that  proposition. 
Whatever  may  be  the  doctrine  of  the  civil  law,  it  is  per- 
fectly clear  that  our  law  carries  such  liability  much  further. 
Thus  a  factor  is  not  a  servant;  but  being  employed  and 
trusted  by  the  merchant,  the  latter,  according  to  the  case 
in  Salkeld,  is  responsible  for  his  acts.  There  are  besides 
this  other  cases,  as  where  a  person  hires  a  coach  upon  a 
job,  and  a  job-coachman  is  sent  with  it,  the  person  who 
hires  the  coach  is  liable  for  any  mischief  done  by  the 
coachman  while  in  his  employ,  though  he  is  not  his  servant. 
We  all  remember  an  action  for  defamation  brought  against 


GENERAL   RULE   OF   EMPLOYER'S   LLVBILITY.  109 

Tattersall,  who  was  a  prorpietor  of  a  newspaper,  with  six- 
teen others ;  the  Hbel  was  inserted  by  the  persons  whom  the 
proprietors  had  employed  by  contract  to  collect  news,  and 
compose  the  paper,  yet  the  defendant  was  held  liable.  Now 
this  is  a  strong-  case  to  show  that  it  makes  no  difference 
whether  the  persons  employed  by  the  defendant  were  em- 
ployed on  a  quantum  meruit,  or  were  to  be  paid  a  stipulated 
sum.  In  Roscwcll  v.  Prior,^^  an  action  for  the  con- 
tinuance of  a  nuisance  was  held  to  lie  against  the  defendant, 
though  he  had  underlet  the  building  which  was  the  subject 
of  it,  and  though  the  plaintiff  had  recovered  against  him 
in  a  former  action  for  the  erection  of  the  nuisance ;  for 
the  Court  said,  "He  aflirmed  the  continuance  by  his  demise, 
and  received  rent  as  a  consideration  for  it."  That  case 
is  analogous  to  the  present;  the  ground  of  the  decision 
having  been  that  the  defendant  was  benefited  by  the 
nuisance  complained  of.  It  is  not  possible  to  conceive  a 
case  in  which  more  mischief  might  arise  than  in  the  present, 
if  the  various  subcontracts  should  be  held  suflkient  to 
defeat  the  plaintiff  of  his  action.  Probably  he  would  not 
be  able  to  trace  them  all,  since  none  of  the  parties  could  give 
him  any  information,  and  consequently  he  might  be  turned 
round  every  time  he  came  to  trial. 

RooKE,  J.  I  am  of  the  same  opinion.  He  who  has  work 
going  on  for  his  benefit,  and  on  his  own  premises,  must  be 
civilly  answerable  for  the  acts  of  those  whom  he  employs. 
According  to  the  principle  of  the  case  in  2  Lev.,  it  shall  be 
intended  by  the  court  that  he  has  a  control  over  all  those 
persons  who  work  on  his  premises,  and  he  shall  not  be 
allowed  to  discharge  himself  from  that  intendment  of  law 
by  any  act  or  contract  of  his  own.  He  ought  to  reserve 
such  control,  and  if  he  deprive  himself  of  it,  the  law  will 

"   Rosewell  v.  Prior  (1702),  12   Mod.  635. 


110       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

not  permit  him  to  take  advantage  o£  that  circumstance  in 
order  to  screen  himself  from  an  action.  The  case  which 
has  been  supposed  of  the  Hme  having  been  deposited  at  a 
distance  from  the  defendant's  house,  and  the  accident 
having  happened  there,  does  not  apply :  for  here  a  person 
acting  under  the  general  employment  of  the  defendant 
brought  a  quantity  of  lime  to  the  premises,  and  deposited 
it  without  any  objection  being  made  by  any  person  there, 
whereas  it  was  the  duty  of  the  defendant  to  have  provided 
a  person  to  superintend  those  employed  in  his  work.  The 
person  from  whom  the  whole  authority  is  originally  de- 
rived, is  the  person  who  ought  to  be  answerable,  and  great 
inconvenience  would  follow  if  it  were  otherwise.  There 
is  such  a  variety  of  subcontracts  in  this  case  as  rarely  occurs, 
but  this  serves  only  to  illustrate  more  strongly  the  mischief 
which  would  ensue  should  we  depart  from  the  doctrine  in 
Stone  V.  Cartwright.  In  that  case,  and  in  Littledale  v. 
Lord  Lonsdale,  the  safest  rule  was  adopted.  The  plaintiff 
may  bring  his  action  either  against  the  person  from  whom 
the  authority  flows,  and  for  whose  benefit  the  work  is 
carried  on,  or  against  the  person  by  whom  the  injury  was 
actually  committed.  If  the  employer  suffer  by  the  acts  of 
those  with  whom  he  has  contracted,  he  must  seek  his  reme- 
dy against  them. 
Rule  discharged. 

Sec.  49.    Basis  of  Early  Rule  Discussed. 

In  the  case  of  Bush  v.  Steinman,  it  is  said,  "the 
court  principally  relied  upon  the  case  of  Littledale  v.  Lons- 
dale, 2  H.  Bl.  267,  wherein  defendant  was  held  responsible 
for  an  injury  to  the  plaintiff's  horse,  done  by  persons  with 
whom  he  had  contracted,  and  not  merely  employed  as  agents 
or  servants  to  work  a  colliery,  on  the  ground  that  the  col- 


GENERAL   RULE   OP   EMPLOYER  S   LLVBILITY. 


Ill 


liery  was  the  defendant's  property,  was  on  his  land,  and 
the  description  of  persons  working  it  could  make  no  differ- 
ence in  his  responsibility.  .  .  .  See  likewise  Stone  v. 
Cartzvright,  6  T.  R.,  411 ;  Flozver  v.  Adam,  2  Taunt.  314; 
Payne  v.  Rogers,  2  H.  Bl.  350;  Leslie  v.  Founds,  4  Taunt. 
^9  ."14  "Lord  Chief  Justice  Eyre's  opinion  in  Bush 
V.  Steinman,  shows  the  difficulty  of  this  doctrine,  and 
the  grounds  on  which  it  is  founded."  '•"' 

Sec.  50.     Distinction  as  to  Real  and  Personal  Property. 

In  an  English  case  decided  in  1826,  the  court  rejected 
the  broad  and  unqualified  principle  announced  in  Bush  v. 
Steinman,  but  were  still  inclined  to  accept  the  decision  as 
binding  with  respect  to  injuries  resulting  from  the  per- 
formance of  work  on  or  near  the  employer's  premises.^® 
The  doctrine  that  an  employer's  liability  is  measured  by 
different  standards,  according  as  the  negligence  complained 
of  was  committed  in  reference  to  real  or  personal  property, 
was  applied  or  recognized  in  several  later  cases,  English 
as  well  as  American. ^'^     But  the  doctrine  that  a  dift'erent 


"  Note    to    Wej'land    v.    Elkins 

( ),  Holt's   N.   P.  227.     "See, 

also.  Laugher  v.    Pointer    (1826), 

5  B.  &  C.  547,  where  most  of  the 
cases    are    reviewed ;    Hughes    v. 

Boyer  ( ),  9  Watts,  556;  Mil- 

ligan    V.    Wedge    (1840),    12   Ad. 

6  El.  737."  Story  on  Agency,  9th 
ed.,  551 ;  Id.  558,  et  seq. 

"  Note  to  Story  Agcy.,  Sec.  454. 
"See   this   case   commented  on   in 

Duncan    v.    Findlater     ( ),    6 

Clark  &  F.  894.  by  Lords  Cotten- 
ham  and  Brougham,  where  it 
seems  to  have  been  thought  to 
push  the  doctrine  of  the  liability 
of  the  principal  to  its  fullest  ex- 


tent. Mr.  Holt  has  appended  a 
very  able  note  (p.  229)  on  this 
subject  to  the  case  of  Weyland  v. 
Elkins,  1  Starkie,  272."  (Story 
Agcy..  548-9.) 

'"Laugher  v.  Pointer  (1826),  S 
Barn.  &  C.  547.  In  some  of  the 
American  states  this  early  rule 
was  at  first  restricted  so  as  to  af- 
fect only  realty.  Stone  v.  Che- 
shire Railro.\d  (1849),  19  N.  H. 
427;  51  Amer.  Dec.  192.  Ques- 
tioned in  Wright  v.  Holbrook 
(1872),  52  X.  H.  120;  13  Amer. 
Rep.  12. 

"Quarman  v.  Burnett  (1840), 
6  Mees  &  W.  499 ;  4  Am.  Neg.  R. 


112       INDEPENDENT    CONTRACTORS    AND    TilEIR    LIABILITY. 

rule  prevails  as  to  real  property  than  to  personal  property 
was  soon  rejected,  and  among-  the  first  to  repudiate  it  were 
the  courts  which  first  adopted  it.^*^  And  a  succession  of 
carefully  considered  cases  established  the  same  views  in  a 
number  of  the  United  States. ^'^  At  the  present,  the  dis- 
tinction between  realty  and  personalty  in  this  connection 
has  been  generally,  if  not  wholly,  abolished.^** 


Sec.  51.     Present  Rule  and  Tendency. 

As  a  general  thing,  the  doctrine  of  Bush  v.  Stein  man 
has  been  repudiated.-^     J^^dge  Thompson,  in  his  exhaustive 


437,  n;  Rapson  v.  Cul^bitt  (1842), 
9  jMees  &  W.  709.  Cf.,  Button 
V.  Amesbiiry  National  Bank 
(1902),  181  Mass.  154;  63  N.  E. 
405;  Hardaker  v.  Idle  District, 
etc.  (1896),  1  Q.  B.  335;  Blatten- 
berger  v.  Little  Schuyskill,  etc., 
Co.   (1839),  2  Miles  (Pa.),  309. 

'-''Milligan  V.  Wedge  (1840),  12 
Ad.  &  El.  IZT ;  Reedie  v.  London, 
ETC.,  R.MLROAD  (1849),  4  Exch. 
254;  4  Am.  Neg.  Rep.  438,  n;  9 
Id.  122,  n ;  which  case  unanimous- 
ly and  definitely  repudiated  the 
distinction  which  formerly  pre- 
vailed. To  the  same  effect.  Gay- 
ford  V.  Nicholls  (1854),  9  Exch. 
702. 

"Blake  v.  Ferris  (1851),  5 
N.  Y.  48;  55  Amer.  Dec.  304; 
Barry  v.  St.  Louis  (1852).  17  Mo. 
121;  DeForrest  v.  Wright  (1852), 
2  Mich.  368;  Pack  v.  New  York 
(1853),  8  N.  Y.  222;  Hilliard  v. 
Richardson  (1855),  3  Gray 
(Mass.),  349;  63  Amer.  Dec.  743; 
collecting  and  examining  authori- 
ties; BoswELL  V.  Laird  (1857),  8 
Cal.  469;  68  Amer.  Dec.  345.    The 


doctrine  of  Bush  v.  Steinman 
was  expressly  disapproved  in 
Gourdier  v.  Cormack  (1853),  2  E. 
D.  bmith,  254. 

^Laugher  v.  Pointer,  supra; 
Boswell  v.  Laird,  supra;  King  v. 
New  York,  etc.,  Railroad  (1876), 
66  N.  Y.  181;  23  Amer.  Dec.  2>7 ; 
Ryder  v.  Thomas  (1873),  13  Hun 
(N.  Y),  296;  Conlin  v.  Charles- 
ton (1868),  15  Rich.  L.  (S.  C.),' 
201;  Benedict  v.  Martin  (1862),  36 
Barb.  (N.  Y.),  288;  McC.\fferty 
V.  Spuyten  Duyvil,  etc.,  Rail- 
road (1874),  61  N.  Y.  178;  19 
Amer.  Rep.  267;  Gilbert  v.  Beach 
(1855),  16  N.  Y.  606. 

^  Quarman  v.  Burnett  (1840), 
6  M.  &  W.  499;  4  Am.  Neg.  R.' 
317,  n ;  Hilliard  v.  Richardson 
(1855),  3  Gray  (Mass.),  349;  63 
Amer.  Dec.  743;  Painter  v.  Pitts- 
Ijurgh  (1863),  A6  Pa.  St.  213; 
Pack  V.  New  York,  etc.,  Railroad 
(1853).  8  N.  Y.  222;  Cuff  v. 
Newark,  etc.,  Railroad  (1870), 
35  N.  J.  L.  574;  10  Amer.  Rep. 
205:  16  Am.  Neg.  Gas.  668,  n. ; 
Kellogg  V.  Payne  (1866),  21  Iowa, 


GENERAL   KILE   OP   EMPLOYER'S   LLVBILITY. 


113 


work  on  "Negligence,"  states  the  general  rule  to  be  "that 
one  who  has  contracted  with  a  fit  and  competent  person, 
exercising  an  independent  employment,  to  do  a  piece  of 
work  not  in  itself  unlawful,  or  of  such  a  nature  that  it  is 
likely  to  become  a  nuisance,  or  to  subject  third  persons  to 
unusual  danger,  according  to  the  contractor's  own  methof': 
and  without  being  subject  to  control  except  as  to  the  results 
of  his  work,  and  subject  to  other  qualifications  hereafter 
stated,  will  not  be  answerable  for  the  wrongs  of  such  con- 
tractor, his  subcontractors  or  his  servants,  committed  in  the 
prosecution  of  such  work."  ^^ 

In  a   valuable  note  to  one  of  his  articles,   Mr.    Labatt 
summarizes  the  present  tendency  regarding  the  doctrine  of 


575;  Allen  v.  Willard   (1868),  57 
Pa.    St.   381;    Pawlet   v.   Rutland, 
etc.,  Railroad   (1855),  28  Vt.  297; 
King   v.    New   York,   etc.,   R.\il- 
Ro.M)    (1876).   66    N.    Y.    181;    23 
Amer.  Rep.  i7 ;  Ryder  v.  Thomas 
(1878),    13    Hun     (N.    Y.),    296. 
"But    the    authority    of    Bush    v. 
Steinm.vn  has  been  in  the  modern 
cases    either    entirely    denied    or 
much    doubted."      Note    to    Story 
Agcy.,     5th     ed.,     p.     551,  .  citing 
Knight   V.    Fox    (1850),    5    Exch. 
721;  Overton  v.  Freeman   (1852), 
11  C.  B.  367;  9  Am.  Neg.  R.  122, 
n.;    HiLUARD  V.   Richardson,  .yw- 
pra;  Rcedie  v.  London,  etc.,  Rail- 
road (1849),  4  Exch.,  244;  6  Eng. 
R.    &   Corp.    C.    184.     "The  great 
weight  of  modern  decisions  upon 
this   question   establishes   the   rule 
that    where   the   relation  of  inde- 
pendent contractor  exists  as  to  the 
use    of    real    property,     and    the 
party    employed    is   skilled    in   the 
performance  of  the  duty  he  under- 
takes   and    the    thing    directed    to 


be  done  is  not  in  itself  a  nuisance, 
or  will  not  necessarily  result  in 
a  nuisance,  the  injury  resulting, 
not  from  the  fact  that  the  work 
is  done,  but  from  the  negligent 
manner  of  doing  it  by  the  con- 
tractor or  his  servants,  the  owner 
cannot  be  made  to  respond  in 
damages."  Robinson  v.  Webb 
(1875),  11   Bush  (Ky.).  464. 

•-Thomps.  Neg.,  Sec.  621.  He 
adds  in  a  foot  note  that  he  states 
"the  rule  broadly  bringing  into 
use  all  the  well  recognized  quali- 
fications," and  cites  a  multitude 
of  cases  supporting  the  rule 
stated,  though  some  of  them  ex- 
clude some  of  the  qualifications. 
A  tenant  consented  to  his  land- 
lord's making  repairs;  he  engaged 
an  independent  contractor  through 
whose  negligence  the  tenant  was 
injured;  the  landlord  was  held 
not  liable.  Jefferson  v.  Jameson, 
etc..  Co.  (1897^.  165  IlLs.  138:  46 
N.  E.  272.  See  post.  Sees.  106- 
109. 


114       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Bush   v.    Steinman    as    follows:     "From   the    foregoing 
review  it  will  be  apparent  that,  about  the  middle  of  the 
19th  century,  almost  every  court  which  had  had  an  oppor- 
tunity of  expressing  its  views  had  definitely  discarded,  not 
merely  the  broad  principle  embodied  in  Bush  v.   Stein- 
man, viz. :    that  a  person  must  answer  for  the  torts  of  all 
those  who  are  in  his  employ,  whether  they  are  servants  or 
contractors,  but  also  the  qualified  doctrine  upon  which  it 
had  been  for  some  time  supposed  that  that  doctrine  could 
be  supported,  viz. :  that  a  responsibility  of  this  extent  is 
imputable  wherever  the  injury  resulted  from  the  execution 
of  work  on,  near  or  in  respect  to,  real  property  belonging  to 
the  employer.     What  may  be  regarded  as  the  characteristic, 
as  it  is  certainly  the  most  important,  feature  of  the  doc- 
trinal  developments   during  the   subsequent   period   is   the 
gradual  delimitation  of  the  domain  within  which  the  general 
rule  as  to  the  non-liability  of  an  employer  for  the  torts  of 
an    independent   contractor    is   controlled   and    overridden, 
by  the  principle  that  a  person  who  is  subject  to  an  absolute 
duty  can  not.  by  delegating  it  to  another  party,  relieve  him- 
self from  liability  for  injuries  caused  by  its  non-fulfillment. 
An  examination  of  the  cases     .     .     .     will  show  that  the 
result  of  working  out  this  principle  in   its  application  to 
certain  situations  has  been  the  formation  of  several  groups 
of  precedents,  which  in  any  case  involving  similar  facts, 
put  a  plaintff,   so   far  as  his  actual  right  of   recovery   is 
concerned,  in  a  position  which  is  very  nearly,  if  not  quite, 
as   favorable   as   he  would   have   occupied   if  the   doctrine 
announced   in   Bush   v.    Steinman   had   found  a   perma- 
nent   place    in    Anglo-American   jurisprudence.      It    seems 
certain,  however,  that  a  plaintiff,  now  suing  for  injuries 
received  under  the  same  circumstances  as  those  involved 
in  that  case,  could  not  recover  under  any  of  the  more  re- 
cent  doctrinal   developments.      The   work   was   not   intrin- 


GENERAL   RULE  OP   EMPLOYER  S   LIABILITY. 


115 


sically  dangerous,  nor  was  there  a  violation  of  any  absolute 
duty  which  the  employer  was  bound,  at  his  peril,  to  see 
performed.  How  far  these  encroachments  upon  the  older 
doctrine  of  non-liability  will  be  carried  remains  to  be  seen. 
In  this  respect  the  law  is  at  present  in  a  transition  state. 
But  in  view  of  the  trend  of  judicial  opinion,  as  indicated 
by  the  most  recent  decisions,  it  seems  perfectly  safe  to 
predict,  that  in  some  directions  at  least,  the  immunity  of 
the  employer  will  continue  to  be  more  and  more 
abridged."  ^3 

Sec.  52.     Effect  of  Non-interference. 

Ordinarily,  as  implied  in  preceding  sections,  the  propri- 
etor is  not  liable  when  he  does  not  interfere  with  the  manner 
of  conducting  the  work.^'*  Where  a  railroad  company 
employs  an  engineer  to  superintend  the  general  progress 
of  the  construction  of  its  road  and  to  see  that  the  work  is 
done  according  to  contract,  the  railroad  company  is  not 
liable   for  the  acts  of  its  independent  contractor. -**     The 


^Note  to  Salliotte  v.  King 
Bridge  Co.  (1903),  58  C.  C.  A. 
466;  122  Fed.  378.  in  65  L.  R.  A., 
at  pp.  631-632. 

^Larson  v.  Metropolitan 
Street  Railroad  (1892),  110  Mo. 
234;  19  S.  W.  416;  16  L.  R.  A. 
330;  33  Amer.  St.  Rep.  439.  See 
ante,  Sees.  18,  19.  An  early  Penn- 
sylvania case  says  it  is  settled  in 
England  '"that  defendants,  not 
personally  interfering  or  giving 
directions  respecting  the  progress 
of  a  work,  but  contracting  with  a 
third  person  to  do  it,  are  not 
responsible  for  a  wrongful  act 
done  or  negligence  in  the  per- 
formance  of   the    contract    if    the 


act  agreed  to  be  done  is  legal." 
Painter  v.  Pittsburgh  (1863),  46 
Pa.  213;  Edmundson  v.  Pitts- 
burgh, etc.,  Railroad  (18S5).  Ill 
Pa.  316;  2  Atl.  404. 

^  Clark  V.  Hannibal,  etc.,  Rail- 
road (1865;),  36  Mo.  202;  Calla- 
han V.  Burlington,  etc.,  Railroad 
(1867),  23  Iowa,  562;  Eaton  v. 
European,  etc.,  Railroad  (1871), 
59  Me.  520;  8  Amer.  Rep.  430; 
Rekdie  v.  London,  etc..  Railroad 
(1849),  4  Exch.  244;  6  Eng.  R. 
&  Corp.  Cas.  184;  Erie  v.  Cal- 
kins (1877).  85  Pa.  St.  247;  27 
Amer.  Rep.  642;  Reed  v.  Alle- 
ghany (1875),  79  Pa.  St.  303; 
Pack  V.  New  York   (1832),  8  N. 


116       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

doctrine  of  an  employer's  non-liability  "is  frequently  put 
upon  the  ground  that  the  characteristic  incident  of  the 
relation  created  by  an  independent  contract  is,  that  the 
employer  has  not  the  power  of  controlling  the  person  em- 
ployed in  respect  to  the  details  of  the  stipulated  work,  and 
that  it  is  a  necessarily  juridical  consequence  of  this  situa- 
tion that  the  former  should  not  be  answerable  for  an 
injury  resulting  from  the  manner  in  which  those  details 
may  be  carried  out  by  the  latter."  ^^  In  a  recent  California 
case,  the  court  said  in  part:  "Moreover,  upon  the  face  of 
these  facts,  it  would  be  a  conclusion  amounting  almost  to 
absurdity  to  say  that  the  F.  Bros,  -(employers)  who  were 
shown  to  be  no  more  than  farmers  and  unskilled  in  dredg- 
ing work  and  in  the  use  of  dredgers,  should  be  held 
accountable  for  the  necessary  details  in  the  proper  perform- 
ance of  an  undertaking  such  as  this  (2^2  miles  of  20-foot 
ditching),  and  that  it  was  or  ever  could  have  been  contem- 
plated that  they  and  not  the  (defendant)  dredging  company 
knew  how  the  work  should  have  been  performed,  .  .  . 
and  that  they  had  undertaken  the  legal  responsibility,"  etc.^"^ 

Sec,  53.     General  Rule  as  to  Liability  of  Municipalities. 

The  rule  exempting  the  proprietor  from  liability  for 
damages  where  the  work  is  done  by  an  independent  con- 
tractor   is,    in   general,    the    same    in    its   application   to   a 

Y.   222.     Under  a   general   denial  the  course  of  the  work."     Harri- 

it    is    not    error    to    charge    that  son  v.  Kiser   (1887),  79  Ga.  588; 

"where  one  has  a  lawful  work  to  4  S.  E.  320. 

do  and  employs  another  who  has  -'  Note    to    Salliotte    v.    King 

an    independent    business    of    his  Bridge   Co.    (1903),   58   C.    C.    A. 

own,  including  work  of  that  class,  466 ;    122  Fed.   378 ;   65   L.  R.   A., 

to  do  it,  and  where  the  employer  p.  632. 

himself  does  not  exercise  any  direc-  ''^^  Teller     v.      Bay,      etc.,      Co. 

tion  as  to  how  it  shall  be  done,  he  (1907),  —  Cal.  — ;   90  Pac.  942; 

is  not  responsible  for  any  wrong  12  L.  R.  A.   (N.  S.).  273. 

that  the  employee  may  commit  in 


GENERAL   KL'LE   OF   EMPLOYER  S   LIAlilLlTV 


117 


municipal  corporation,  as  to  any  other  proprietor.  A 
municipal  corporation  is  generally  not  liable  for  the  negli- 
gence of  an  independent  contractor  or  his  employees;  this, 
however,  is  subject  to  certain  exceptions  stated  later.^^ 
Broadly  speaking,  a  city  will  not  be  liable  for  the  negligent 
performance  of  a  contract  by  one  who,  for  an  agreed 
compensation,  undertakes  its  performance,  and  the  city 
retains  no  control  or  supervision  over  the  methods  or 
manner  of  work.^"^    When  applied  to  municipal  corporations 


="Nevins  v.  Peoria  (1866),  41 
Ills.  502;  McFadi>en  v.  Jewell 
(1903),  119  Iowa.  321;  93  N.  W. 
302;  97  Amer.  St.  Rep.  "321 ;  60 
L.  R.  A.  401  (cleaning  highways 
of  weeds)  ;  Barry  v.  St.  Lou's 
(1852),  17  Mo.  121;  Hilsdorf  v 
St.  Louis  (1869),  45  Mo.  94,  98; 
100  Amer.  Dec.  352;  Jansen  v 
Jersey  City  (1898),  61  N.  J.  Law. 
243;  39  Atl.  1025;  4  Am.  Neg. 
Rep.  313  (building  city  hall;  a 
doubtful  decision)  ;  Kelly  v.  New 
York  (1854),  11  N.  Y.  432;  Pack 
V.  New  York  (1853).  8  N.  Y. 
222;  Uppington  v.  New  York 
(1901),  165  N.  Y.  222;  59  N.  E. 
91 ;  53  L.  R.  A.  550 ;  6  Am.  Neg. 
Rep.  366  (constructing  sewer;  a 
doubtful  decision)  ;  Erie  v.  Caul- 
kins  (1877).  85  Pa.  St.  247;  27 
Amer.  St.  Rep.  642;  Ginther  v 
Yorkville  (1897),  3  Pa.  Super. 
403  (laying  water  pipes  and  erect- 
ing fire  plugs)  ;  Painter  v.  Pitts- 
burgh (1863).  46  Pa.  St.  213; 
Reed  v.  Alleghany  City  (1875), 
19  Pa.  St.  300 ;  White  v.  Philadel- 
phia (1902),  201  Pa.  St.  512;  51 
Atl.  332  (in  which  an  independent 
contractor  employed  in  dredging 
out  a  canal  flooded  fields  adjoin- 


ing; the  damage  which  ensued 
would  have  been  avoided  by  the 
construction  of  a  dam  with  a  by- 
pass for  carrying  off  the  water)  ; 
HOWARTH     V.     McGUGAN      (1893), 

23  Ont.  Rep.  396;  47  Am.  &  Eng. 
Corp.  Cas.  133  (contract  for  re- 
pair of  highway).  To  the  con- 
trary are :  Delmonico  v.  New 
York  (1848),  1  Sandf.  S.  C.  (N. 
Y.),  222;  Nashville  v.  Brown 
(1871),  9  Heisk.  (Tenn.),  1;  24 
Amer.  Rep.  289;  Bush  v.  Stein- 
man  (1799),  1  Bos.  &  Pul.  404; 
Milliard  v.  Richardson  (1855), 
3  Gray  (Mass.),  363;  63  Amer. 
Dec.  742.  Commenting  on  some 
of  these  cases.  Judge  Thompson 
in  his  Commentaries  on  Negli- 
gence says  at  Sec.  5803,  note  197: 
"This  (Bush  v.  Steinman)  is 
one  of  the  most  distinctly  over- 
ruled cases  in  the  books ;  Nash- 
ville V.  Brown,  supra,  which  fol- 
lows it.  is  entirely  out  of  line 
with  the  current  of  American  au- 
thority."   See  ante.  Sec.  3i>n. 

^Koontz  V.  District  of  Colum- 
bia (1904),  24  App.  (D.  C),  59; 
Bennett  v.  Mt.  Vernon  (1904), 
124  Iowa,  537;  100  N.  W.  349;  16 
Am.   Neg.  Rep.  612,  n ;   LaGrouc 


118       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

the  rule  of  exemption  is  subject  to  the  quahfication  that 
such  corporations  are  under  the  absolute  duty  of  exercising 
reasonable  care  to  the  end  that  their  streets  and  sidewalks 
are  kept  free  from  nuisances  and  safe  for  the  public  travel; 
and  it  is  obvious  that  they  are  just  as  much  bound  to 
exercise  this  care  for  the  prevention  and  removal  of  ob- 
structions, pitfalls  or  other  nuisances  placed  there  by  their 
own  contractors  as  when  they  are  placed  there  by  mere 
passersby.^^ 


V.  New  Orleans  (1905),  114  La. 
253;  38  So.  160;  Wright  v.  Mus- 
kegon (1905),  140  Mich.  215;  103 
N.  W.  558;  Haefelin  v.  INIcDonald 
(1904),  96  App.  Div.  213;  89  N. 
Y.  Supp.  395;  Jewell  v.  Mt.  Ver- 
non (1904),  91  App.  Div.  578;  87 
N.  Y.  Supp.  120;  Kelly  v.  New 
York  (1905),  106  App.  Div.  576; 
94  N.  Y.  Supp.  872.  It  has  also 
been  held  that  a  city  which  enters 
into  a  contract  whereby  the  con- 
tractor undertakes  to  carry  off 
the  garbage  and  refuse  collected 
in  the  city,  to  some  point  in  Lake 
Michigan  not  less  than  fifteen 
miles  from  the  city,  and  there 
dump  it  into  the  lake,  the  city 
reserving  to  itself  the  right  to  re- 
let the  contract'  in  case  of  im- 
proper or  imperfect  performance, 
is  not  liable  for  damages  to  fish- 
ing nets  resulting  from  the  gar- 
bage being  carried  into  them  by 
the  ordinary  movements  of  the 
water;  Kuehn  v.  Milwaukee 
(1896),  92  Wise.  263;  65  N.  W. 
1030.  a  decision  which  Judge 
Thompson  declares  "proceeds, 
with  a  poor  sense  of  justice,  in 
disregard  of  the  principle  that  the 
proprietor  is  liable  where  the  in- 


jury proceeds  from  the  nature  of 
the  work  itself."  Thomps.  Neg., 
p.  603. 

^Jefferson  v.  Chapman  (1889), 
27  Ills.  App.  43;  127  Ills.  428;  20 
N.  E.  33 :  Thomps.  Neg.,  Sec.  533, 
et  seq.  If  this  principle  of  lia- 
bility is  properly  carried  out  it 
will  go  far  toward  making  a  mu- 
nicipal corporation  liable  for  de- 
fects in  highways,  public  sewers, 
and  other  public  improvements 
which  are  the  result  of  the  negli- 
gent manner  of  doing  public  work 
by  its  contractors,  if  imder  the 
rule  obtaining  in  the  given  juris- 
diction, such  liability  attaches  to 
municipal  corporations  under  any 
circumstances.  Beatrice  v.  Reid 
(1894),  41  Nebraska  214;  59  N. 
W.  770.  The  general  rule  has 
been  extended  so  far  as  to  exempt 
a  municipal  corporation  from  lia- 
bility for  injuries  to  third  persons 
occasioned  by  the  negligence  of 
workmen  engaged  in  grading  a 
street,  under  the  direction  of  a 
person  who  has  entered  into  a 
contract  with  the  corporation  to 
perform  the  work  in  conformity 
to  a  plan  referred  to  in  the  con- 
tract,  for  a   specified   sum,  to   be 


GENERAL   RULE   OP   EMPLOYER  S   LLVBILITY. 


119 


Sec.  54.     Same  as  to  School  Districts. 

In  Iowa,  in  a  suit  against  a  school  district  for  an  injury 
to  a  child  received  from  the  machine  of  a  well  borer  while 
boring  a  well  in  the  schoolhouse  yard,  the  plaintiff  failed 
to  recover  damages  because  the  negligence  was  shown  to 
have  been  that  of  an  independent  contractor.^" 

Sec.  55.     Same  as  to  Railroad  Companies. 

The  general  rule  of  non-liability  relieves  a  railroad  com- 
pany from  liability  for  injuries  due  to  the  negligence  of 
contractors  where  the  work  they  are  engaged  in  performing 
is  not  essentially  hazardous,  and  ordinary  care  has  been 
used  in  the  selection  of  the  contractors.^^  Where  the  rail- 
road company  has  not  committed  the  execution  of  any  of 
its  franchises  to  contractors  employed  by  it  to  build  its 
road,  the  courts  in  general  hold  that  it  stands  under  the  same 
immunity  from  liability  to  answer  for  the  wrongs  done  by 
an  independent  contractor,  whom  it  employs  merely  to 
produce  certain  results  and  over  whose  methods  it  exercises 
no  control,  as  that  which  attaches,  under  like  circumstances, 
to  any  other  proprietor.  ^^    The  cases  cited  proceed  upon  the 


paid  for  by  the  corporation.  Pack 
V.  New  York  (1S52),  8  N.  Y.  222; 
Kelly  V.  New  York  (1854),  11 
N.  Y.  432.  These  authorities  are, 
however,  challenged,  as  see  post, 
Sec.  143. 

*"  Wood  V.  Independent  School 
District  (1876),  44  Iowa.  27.  Cf., 
Sec.  22,  n. 

"  Norfolk,  etc.,  Railroad  v. 
Stevens  (1899),  97  Va.  631;  34 
S.  E.  525;  46  L.  R.  A.  367;  ReiUy 
V.  Chicago,  etc..  Railroad  (1904), 
122  Iowa,  525;  98  N.  W.  464;  33 
Am.  &  Eng.  R.  Cas.  (N.  S.,)  418; 


16  Am.  Neg.  R.  611,  n.    See,  also, 
Sec.  ?)'B>g,  ante. 

^  Rome,  etc..  Railroad  v.  Chas- 
TEEX  (1889),  88  Ala.  591;  7  So. 
94;  40  Am.  &  Eng.  R.  Cas.  559; 
St.  Louis,  etc.,  Railroad  v.  Yon- 
LEY  (1900),  53  Ark.  503;  14  S.  W. 
800;  9  L.  R.  A.  604;  45  Amer.  & 
Eng.  R.  Cas.  578;  McCann  v. 
King's  County,  etc.,  Railroad 
(1892),  46  N.  Y.  St.  Rep.  327;  19 
N.  Y.  Supp.  668;  Miller  v.  Min- 
nesota, etc..  Railroad  (1888),  76 
Iowa,  665;  39  N.  W.  188;  14 
Amer.   St.   Rep.   258;    38  Am.   & 


120       INDEPENDENT    CONTRACTORS    AND    THEIR    LLVJBILITY. 

view  that  a  contract  by  a  railroad  company  with  another 
person  or  corporation  for  the  construction  of  its  road, 
is  not  such  a  delegation  of  its  chartered  rights  as  will  render 
it  liable  for  unauthorized  wrongs  committed  by  the  con- 
tractor or  his  servants  in  the  prosecution  of  the  work. 
Therefore,  a  railroad  company  will  not  be  liable  to  a  third 
person  for  a  nuisance  resulting  from  a  negligent  or  im- 
proper construction  of  the  road  by  the  construction  com- 
pany occupying  the  position  of  an  independent  contractor, 
even  though  (in  the  view  of  one  court)  it  is  notified  that 
the  work  is  being  improperly  done.^^ 

Sec.  56.     Same  as  to  Other  Undertakings. 

Defendants,  owning  a  sugar  refinery,  employed  a  rigger 
to  remove  machinery  from  a  railroad  car  to  their  refinery. 
In  doing  the  work  he  opened  a  coal  hole  in  the  sidewalk, 
and  left  it  open  a  few  minutes  after  finishing  the  work,  and 
a  child  fell  into  it  and  was  injured.  It  appeared  that  the 
defendants  neither  directed  nor  interfered  with  the  manner 
of  the  work,  and  it  was  therefore  held  that,  as  the  rigger- 
was  an  independent  contractor,  they  were  not  liable  for 
the  injury.-"^^  One  is  not  liable  for  the  negligent  piling 
of  lumber  by  another  who  has  contracted  to  take  the  lumber 
from  a  car,  pile  and  dry  it,  use  a  portion  of  it  in  making 
articles  to  be  paid  for  by  the  piece,  and  turn  the  rest  over 
to  the  former  for  use  on  portions  of  the  premises  remaining 


Eng.  R.  Cas.  234;  St.  Louis,  etc., 
Railroad  v.  Willis  (1888),  38 
Kans.  330;  16  Pac.  728;  33  Am. 
&  Eng.  R.  Cas.  397.  See  post, 
Sees.  115,  116,  et  scq.,  for  discus- 
sion of  the  liability  of  railway 
companies  when  the  alleged  inde- 
pendent contractor's  work  in- 
volves  the   exercise  of   the    fran- 


chise rights  and  duties  of  such 
railway  companies. 

^Atlanta,  etc.,  Railroad  v. 
KiMBERLEY  (1891),  87  Ga.  161;  13 
S.  E.  277;  27  Amer.  St.  Rep.  231. 

'*  Harrison  v.  Collins  (1878),  86 
Pa.  St.  153;  27  Amer.  Rep.  699, 
cited  in  Tifif.  Dom.  Rels.,  509.  See, 
generally,  Sec.  38,  ante. 


GENERAL   RULE   OP   EMPLOYER'S   LL\BILITY. 


121 


in  his  control,  the  owner  having  no  control  or  supervision 
as  to  the  piling. •*■''  The  following  have  been  held  independ- 
ent contractors  for  whose  acts  the  owner  was  not  liable : 
A  stair  builder's  servants  improperly  placed  cleats  on  de- 
fendant's stairs  to  protect  them  from  injury  before  being 
painted;^"  a  contractor  failed  to  safeguard  a  trench;'*^  a 
contractor  failed  to  barricade  and  place  lights  on  a  pile  of 
sand.^^ 

Sec.  57.     General  Rule  as  to  Subcontractors. 

The  same  rules  apply  in  determining  responsibility  for 
the  acts  of  a  subcontractor  as  in  the  case  of  a  principal 
contractor.^^  Broadly  stated,  the  principle  which  exoner- 
ates a  proprietor  from  liability  for  the  negligence  of  an 
independent  contractor  applies,  subject  to  the  same  qualifi- 
cation as  to  control,  as  between  the  contractor  and  the  sub- 
contractor, and  exempts  the  former  from  liability  for  the 
negligence  of  the  latter.'*'^  A  subcontractor's  torts  are 
governed  by  the  rules  applicable  to  the  original  contractor. 


'^  Wright  v.  Big  R.vpids,  etc., 
Co.  (1900),  124  Mich.  91;  82  N. 
W.  829;  50  L.  R.  A.  495.      . 

"^Louthan  v.  Hewes  (1902), 
138  Cal.  116;  70  Pac.  1065;  16  Am. 
Neg.  R.  613,  n. 

°'  Ridgeway  v.  Downing  Co. 
(1900),  109  Ga.  591;  34  S.  E. 
1028;  7  Am.  Neg.  R.  218. 

■"HOFF  V.  S  HOCKLEY  (1904),  122 
Iowa.  720;  98  N.  W.  573;  101 
Amer.  St.  Rep.  289;  64  L.  R.  A. 
538;  16  Am.  Neg.  Rep.  607,  n. 
See,  for  further  illustrations,  ante, 
Sec.  38. 

^  Barrows  on  Neg.,  p.  165,  citing 
Cuff  v.  Railroad  Co.  (1870),  35 
N.    J.   Law,    17;    10   Amer.    Rep. 


205 ;  Burd.  Cas.  403 ;  16  Am.  Neg. 
Cas.  668,  n. ;  New  Orleans,  etc.. 
Railroad  v.  Reese  (1864),  61 
Mass.  581;  18  Am.  &  Eng.  R. 
Cas.  110;  The  Harold  (1884),  21 
Fed.  428;  Hawke  v.  Brown 
(1898),  28  App.  Div.  37;  50  N.  Y. 
Supp.  1032;  Rapson  v.  Cubbitt 
(1342),  9  Mees.  &  W.  710;  Knight 
V.  Fox  (1850),  5  Exch.  721 ;  Over- 
ton V.  Freeman  (1853).  11  C.  B. 
867;  9  Am.  Neg.  R.   122,  n. 

■"'  Pioneer,  etc.,  Co.  v.  Hansen 
(1898),  176  Ills.  100;  52  N.  E. 
17;  3  Am.  Neg.  R.  16;  Schutte 
V.  United,  etc.,  Co.  (1902),  68  N. 
J.  Law,  435;  53  Atl.  204;  16  Am. 
Neg.  R.  614,  n. 


122       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

The  subcontractor  becomes  the  principle  in  the  execution 
of  that  part  of  the  work  committed  to  him,  and  for  his 
torts,  neither  the  original  contractor  nor  his  employer  is 
liable,  save  in  the  excepted  cases  already  referred  to  and 
more  fully  discussed  in  the  succeeding  chapters. ^^  If  a 
general  contractor  of  work,  in  turn,  sublets  the  whole,  or 
portions  of  the  work  to  independent  contractors,  he  will 
occupy  towards  them,  in  respect  of  liability  for  their 
wrongs,  a  position  analogous  to  that  which  is  occupied  by 
a  proprietor  toward  an  independent  contractor;  that  is,  he 
will  not  be  liable  for  the  wrongs  committed  by  such  sub- 
contractors or  their  servants,  except  in  cases  where  a  pro- 
prietor would  be  liable,  under  like  circumstances,  for  the 
wrongs  of  an  independent  contractor  or  his  servants. ^^ 
Ordinarily  a  subcontractor  is  not  liable  for  the  negligence 
of  his  subcontractor;  and  so  on  down  as  far  as  successive 
independent  employments  may  obtain.'*^  A  fortiore  the 
employer  of  the  principal  contractor  is  not  liable  for  the 
torts  of  a  subcontractor.'*^     "The  employer  is  not  respon- 

"  Burd.  Torts,  145,  citing  Over-  the  right  to  make  alterations  is  re- 
ton  V.  Freeman,  supra;  Beberich  served,  does  not  change  the  rela- 
V.  Ebach  (1890),  131  Pa.  St.  165;  tion  so  as,  of  itself  to  make  the 
18  Atl.  1008;  Powell  v.  Con-  contractor  liable  for  his  subcon- 
STRUCTiON  Co.  (1890),  88  Tenn.  tractor's  negligence.  Green  v. 
692;  13  S.  W.  691;  17  Amer.  St.  Soule  (1904),  145  Cal.  96;  78 
Rep.  925.  Pac.  337;   17  Am.  Neg.  R.  8. 

*-CuFF  V.  Newark,  etc.,  Rail-  '*  Knight  v.  Fox  (1850),  5 
ROAD  (1870),  35  N.  J.  Law,  15,  Exch.  721;  20  L.  J.  Exch.  9. 
574;  16  Am.  Neg.  Cas.  668,  n.;  16  **  McLean  v.  Russell  (1850),  12 
Amer.  Rep.  205;  Slater  v.  Mer-  Sc.  Sess.  Cas.,  2d  series,  887; 
sereau  (1876),  9  Mees.  &  W.  Moore  v.  Sanborn  (1853).  2 
710;  Rapson  v.  Cubbitt  (1842),  9  Mich.  519;  59  Amer.  Dec.  209. 
Mees.  &  W.  710;  Overton  V.  Free-  If  the  relation  between  a  con- 
man,  supra;  Beberich  v.  Ebach,  tractor  and  a  subcontractor  is  not 
supra;  Powell  v.  Virginia,  etc.,  that  of  master  and  servant,  th^ 
Co.,  supra.  The  fact  that  a  build-  subcontractor  and  not  the  con- 
ing is  to  be  erected  under  the  tractor  is  liable,  generally,  for  his 
supervision    of    an    architect    and  own  wrongs  and  those  of  his  serv- 


GENERAL   RULE   OP   EMPLOYER'S   LLVBILITY. 


123 


sible  for  the  negligence  of  the  independent  contractor  or 
his  sub-agents  while  the  work  is  in  progress,  unless  (a) 
he  is  negligent  in  the  selection  of  the  contractor;  or  unless 
(b)  tile  object  of  the  contract  is  unlawful;  or  unless  (c) 
he  has  omitted  to  perform  an  absolute,  personal  duty."  ^^ 


Sec.  58.     General  Rule  After  Acceptance. 


ic 


If  the  work  has  been  completed  and  accepted  by  the 
eniplo}er,  his  immunity  from  responsibility  for  any  danger- 
ous elements  that  it  may  contain  ceases,  and  his  liability 
is  determined  by  the  rules  of  law  ordinarily  applicable  to 
the  breach  of  the  duties  of  ownership  and  control.'*^  After 
the  work  of  the  contractor  is  completed  and  the  owner 
resumes  control  of  his  property  he  is,  of  course,  liable  for 
its  safe  condition.  It  is  sometimes  a  nice  question  whether 
the  owner  has  resumed  control,  but  this  is  said  to  be 
essentially  a  question  of  fact  and  not  of  law."*^  If  the 
contractor  abandons  the  work  the  employer's  immunity  has 
been  held  to  cease,  and  the  ordinary  rules  of  an  owner's 
liability  to  apply.^^ 


ants.  Johnson  v.  Ott  (1893),  155 
Fa.  St.  17;  25  Atl.  751;  Dalyell 
V.  Tyrer  (1858),  28  Law  J.,  Q.  B.. 
52. 

"Barrows  on  Neg.,  Sec.  60, 
black  letter  text.  For  the  employ- 
er's liability  regarding  a  foreign 
contractor,  see  San  ford  v.  Paw- 
tucket  Street  Railroad  (1896,  R. 
I.),  33  L.  R.  A.  564. 

"See  ante,  Sec.  19;  post,  Sec. 
173,   ct   scq. 

"  Donovan  v.  Transit  Co. 
(1884),  102  Cal.  245; -36  Fac.  517; 


Read  v.  Fire  Distrct  (1898),  20 
R.  L  574;  40  Atl.  760;  4  Anier. 
Neg.  Rep.  589. 

'^Huff.  Agcy.,  2d  ed.,  Sec.  227, 
citing  Read  v.  East  Providence 
Fire  District,  supra;  Higgins  v. 
Western  Union  Telegraph  Co. 
(1898),  156  N.  Y.  75;  50  N.  E. 
500;  66  Anier.  St.  Rep.  537.  See 
post.  Sec.  174,  et  seq. 

*^  Savannah,  etc.,  Railroad  v. 
Phillips  (1892),  90  Ga.  829;  17  S. 
E.  82. 


CHAPTER    III. 

Employers'  Exceptional  Liability — I.   Character  of 

Work. 

SECTION  SECTION 

65.  Exceptions  to  general  rule.  12.     Work  dangerous  per  se ;  gen- 

66.  Doctrine  of  collateral   negli-  eral  rule. 

gence.  7Z.  Same — Blasting. 

67.  Contract  work  a  nuisance.  74.  Same — Fires. 

68.  Same — Unauthorized.  75.  Same — Excavations. 

69.  Same — Unlawful,   other  than  76.  Same — Explosives. 

nuisance.  77.     Same — Balloon  Ascensions. 

70.  Same — Calling    for    injurious       78.     Same — Logging. 

result.  79.     Same — Overhanging    objects. 

71.  Same — Result  unforeseen. 

Sec.  65.     Exceptions  to  General  Rule. 

While  in  a  large  majority  of  cases,  there  is  no  sufficient 
legal  reason,  founded  on  public  policy  or  on  the  relations 
of  the  parties,  why  the  employer  should  be  liable  to  third 
parties  for  the  negligence  of  the  contractor  or  of  his  serv- 
ants, there  are  nevertheless  certain  duties  of  so  grave  a 
nature  that  the  responsibility  for  their  performance  can 
not  be  avoided  by  delegation.  In  some  cases,  as  already 
noted,  a  person  harmed  by  the  tort  of  an  independent  con- 
tractor is  allowed  to  go  beyond  the  general  principle  of 
exemption  of  his  employer  and  seek  redress  from  such  con- 
tractor's employer.  The  extent  of  this  exceptional  liability 
is  a  question  upon  which  the  courts  of  this  country  and  of 
England  are  not  agreed.  Its  narrowest  limits  are  appar- 
ently those  fixed  by  the  recent  decisions  of  New  York,  as 
shown  later  in  this  section.  There  is,  in  not  a  few  instances, 
a  conflict  of  authority  as  to  whether  a  particular  state  of 
124 


employer's  exceptional  liability.  125 

facts  and  circumstances  brings  the  case  within  the  general 
rule,  relieving  the  employer  from  liability,  or  causes  it  to 
fall  within  one  of  the  exceptions  which  render  the  employer 
liable.  It  has  been  declared  that  "the  various  qualifying 
elements  .  .  .  are  not  all  referred  to  in  any  single  judicial 
announcement  of  the  doctrine."  ^  But,  as  appears  in  the 
succeeding  paragraph,  several  authorities  have  undertaken 
to  enumerate  the  exceptional  cases  in  which  the  employer 
will  still  be  liable. 

"The  general  rule  of  an  employer's  non-liability  is  sub- 
ject to  certain  exceptions  which  have  been  thus  stated : 
(1)  If  a  contractor  faithfully  perform  his  contract,  and  a 
third  person  is  injured  by  the  contractor  in  the  course  of 
its  due  performance  or  by  its  result,  the  employer  is  liable, 
for  he  causes  the  precise  act  to  be  done  which  occasions  the 
injury;  but  for  the  negligence  of  the  contractor  not  done 
under  the  contract,  but  in  violation  of  it,  the  employer  is 
in  general  not  liable.  .  .  .  (2)  If  I  employ  a  contractor 
to  do  a  job  of  work  for  me  which,  in  the  progress  of  its 
execution,  obviously  exposes  others  to  unusual  perils,  I 
ought.  I  think,  to  be  responsible  on  the  same  principle  as 
in  the  last  case,  for  I  caused  acts  to  be  done  which  naturally 
expose  others  to  injury.  .  .  .  (3)  If  I  employ  as 
contractor  a  person  incompetent  or  untrustworthy,  I  may 
be  liable  for  injuries  done  to  third  persons  by  his  careless- 
ness in  the  execution  of  his  contract.  .  .  .  (4)  The 
employer  may  be  guilty  of  personal  neglect  connecting  itself 
with  the  negligence  of  the  contractor  in  such  manner  as 
to  render  both  liable."  ^ 

'  Note    to    Salliotte    v.    King  duct  of  his  contractor  where  (a) 

Bridge  Co.  (1903,  Fed.),  65  L.  K  a  positive  duty  is  imposed  by  con- 

A.  622.  tract     or    general    law;     (b)     an 

^Lawrence  v.    Shipman    (1873),  obligation   is  imposed  by  statute; 

39  Conn.  586,  589,  per  Seymour,  J.  (c)-  the   work   to   be   done  is   in- 

"The   employer   cannot   avoid    re-  trinsically    dangerous."      Barrows 

sponsibility  for  the  negligent  con-  on  Neg..  Sec.  63,  black  letter  text 


126       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

The  exceptions  to  the  rule  that  an  employer  is  not  liable 
for  the  negligence  of  an  independent  contractor  or  of  his 
servants  are  stated  as  follows  in  a  leading  Georgia  case : 
(1)   \\'hen  the  work  is  wrongful  in  itself,  or  if  done  in  the 
ordinary  manner  would  result  in  a  nuisance,  the  employer 
will  be  liable  for  injury  resulting  to  third  persons,  although 
the  work  is  done  by  an  independent  contractor.      (2)   If, 
according  to  previous  knowledge  and  experience,  the  work 
to  be  done  is  in  its  nature  dangerous  to  others,  however 
carefully  performed,  the  employer  will  be  liable,  and  not 
the  contractor,  because  it  is  said,  it  is  incumbent  upon  him 
to   foresee   such   danger  and   take   precautions   against   it, 
.    .    .    and  in  this  exception  is  included  the  principle  that 
where  the  injury  is  caused  by  defective  construction,  which 
was  inherent  in  the  original  plan  of  the  employer,  the  latter 
is  liable.     (3)   Where  the  v\Tongful  act  is  the  violation  of 
a  duty  imposed  by  express  contract  upon  the  employer ;  for 
where  a  person  contracts  to  do  a  certain  thing,  he  can  not 
evade  liability  by  employing  another  to  do  that  which  he 
has  agreed   to  perform.      (4)    Where   a   duty   is   imposed 
by  statute.     The  person  on  whom  a  statutory  obligation  is 
imposed  is  liable  for  any  injury  that  arises  to  others  from 
its  non-performance  or  in  consequence  of  its  having  been 
negligently  performed,  either  by  himself  or  by  a  contractor 
employed  by  him.     (5)   The  employer  may  also  make  him- 
self liable  by  retaining  the  right  to  direct  and  control  the 
time  and  manner  of  executing  the  work,  or  by  interfering 
with  the  contractor  and  assuming  control  of  the  work,  or 
of  some  part  of  it,  so  that  the  relation  of  master  and  serv- 
ant arises,  or  so  that  an  injury  ensues  which  is  traceable 
to  his  interference.     But  merely  taking  steps  to  see  that  the 
contractor  carries  out  his  agreement,  as  having  the  work 
supervised  by  an  architect  or  a  superintendent,   does  not 
make  the  employer  liable ;  nor  does  reserving  the  right  to 


employer's  exceptional  llvbility.  127 

dismiss  incompetent  workmen.  (6)  The  employer  may 
also  be  held  liable  upon  the  ground  that  he  has  ratified  or 
adopted  the  unauthorized  wrong  of  the  independent 
contractor."  '' 

In  a  very  recent  Tennessee  case,  the  court  says :  "While 
the  general  rule  is  that  the  proprietor  or  employer  is  not 
liable  for  the  negligence  of  his  contractor  and  the  servants 
and  assistants  of  the  latter,  yet  there  are  well  established 
exceptions  and  limitations  to  it.  These  exceptions  in  gen- 
eral are :  Where  the  act  contracted  to  be  done  is  wrongful 
or  tortious  in  itself;  where  the  injury  is  the  direct  or 
necessary  consequence  of  the  work  to  be  done ;  where  the 
thing  to  be  done  or  the  manner  of  its  execution  involves 
a  duty  to  the  public  incumbent  on  the  proprietor  or  em- 
ployer; where  the  work  contracted  for  is  intrinsically  dan- 
gerous, and  the  performance  of  tlie  contract  will  probably 
result  in  injury  to  third  persons  or  the  public;  and  w^here 
the  proprietor  interferes  with  the  contractor  in  the  per- 
formance of  the  work.  Nor  does  the  general  rule  apply 
where  the  work  has  been  completed  and  accepted."  ^ 

"As  well  stated  in  recent  New  York  cases,  there  are  but 
three  cases  in  which  the  owner  of  fixed  property  is  respon- 
sible for  acts  done  upon  it  which  results  in  injury  to  an- 
other ;  ( 1 )  Where  the  person  doing  the  act  stands  towards 
the  proprietor  in  the  relation  of  employee  or  servant;  (2) 
where  the  act  as  authorized  by  a  contract  between  the  pro- 
prietor and  actor  necessarily  produced  the  injur)^;  (3)  where 
the  injury  was  occasioned  by  the  omission  of  some  duty 

'Atlant.v,     etc.,     Railroad     v.  conceded    that     upon    ground    of 

KiMBERi.EY  (1891),  87  Ga.  161;  13  public    policy    certain    exceptions 

S.  E.  277;  27  Amer.  St.  Rep.  231.  are  made  by   law   to   the  general 

*McHarge  v.  Newcomer  (1907),  rule."    Young  v.  Fosburg  Lumber 

117  Tenn.  595;  100  S.  W.  700;  9  Co.   (1908,  N.  C),  60  S.  E.  654: 

L.    R.    A.    (N.    S.),   298.     "It    is  16  L.  R.  A.    (N.  S.),  255. 


128       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

imposed  on  the  proprietor."  °  "Where  the  employer  per- 
sonally interferes  with  the  work  and  the  acts  performed 
by  him  occasion  the  injury;  where  the  thing  contracted 
to  be  done  is  unlawful ;  where  the  acts  performed  create  a 
public  nuisance;  and  where  the  employer  is  bound  by 
statute  to  do  a  thing  efficiently  and  an  injury  results  from 
its  inefficiency;  these  are  the  only  cases  where  a  person 
employing  a  contractor  is  liable  for  his  torts."  " 

"The  rule  of  independent  contractor  {i.  e.,  employer) 
and  non-liability  for  the  negligence  of  a  contractor  em- 
ployed by  him,  or  by  the  agents  or  servants  of  the  latter, 
is  subject  to  exceptions:  First,  when  duties  are  imposed 
upon  him  by  law,  (a)  by  statute  or  ordinances,  {h)  by 
express  contract  to  indemnify :  Second,  where  the  employer 
is  at  fault,  (a)  in  defective  construction  inherent  in  the 
plan,  {h)  where  he  retains  the  right  to  direct  the  time  and 
manner  of  work,  (c)  ratifies  or  adopts  unauthorized 
wrongs,  {d)  by  not  furnishing  proper  appliances  required 
by  law,  ((?)  interfering  with  the  work,  or  (/)  is  negligent 
in  selecting  a  careful  contractor :     Third,  where  the  work 


^Thomps.  Neg.,  Sec.  646,  citing 
McCafferty  v.  Spuyten  Duyvil, 
ETC.,  Railroad  (1874),  61  N.  Y. 
178;  19  Amer.  Rep.  267;  Ryder  v. 
Thomas  (1878),  13  Hun  (N.  Y.), 
296. 

'Berg  v.  Parsons  (1898),  156 
N.  Y.  109;  50  N.  E.  957;  41  L.  R. 
A.  391 ;  66  Amer.  St.  Rep.  542 ;  4 
Am.  Neg.  Rep.  432;  47  Cent.  L. 
J.,  237;  Burd.  Cas.  Torts,  406, 
note.  "It  will  be  observed  that 
the  New  York  doctrine  recog- 
nizes and  expresses  such  a  duty 
(a  duty  which  the  employer  can 
not    assign    to    a    contractor)     in 


three  classes  of  cases :  1,  Where 
the  work  contracted  for  is  unlaw- 
ful ;  2,  where  it  amounts  to  a 
public  nuisance;  3,  where  a  stat- 
ute imposes  the  duty.  To  this  ex- 
tent, then,  all  the  authorities  are 
agreed.  Undoubtedly,  the  weight 
of  authority  favors  the  recogni- 
tion and  enforcement  of  such  a 
duty;  also,  when  'according  to 
previous  knowledge  and  experi- 
ence the  work  to  be  done  is  in  its 
nature  dangerous  to  others,  how- 
ever carefully  performed.' "  Burd., 
Torts,  141. 


employer's  exceptional  liability.  129 

to  be  done  is  wrongful  or  dangerous  in  itself  (a)  that  it 
would  ordinarily  cause  a  nuisance,  (b)  where  the  job  in 
its  very  construction  ordinarily  becomes  dangerous,  how- 
ever carefully  performed."  '' 

The  exceptions  are  sometimes  covered  by  statute.  Thus, 
Sec.  3819  of  the  Georgia  Civil  Code  provides:  "The  em- 
ployer is  liable  for  the  negligence  of  the  contractor: 
(1)  When  the  work  is  wrongful  in  itself,  or  if  done  in  the 
ordinary  manner,  would  result  in  a  nuisance;  (2)  or  if, 
according  to  previous  knowledge  and  experience,  the  work 
to  be  done  is  in  its  nature  dangerous  to  others,  however 
carefully  performed;  (3)  or  if  the  wrongful  act  is  in  vio- 
lation of  a  duty  imposed  by  express  contract  upon  the  em- 
ployer; (4)  or  if  the  wrongful  act  is  in  violation  of  a  duty 
imposed  by  statute;  (5)  or  if  the  employer  retains  the 
right  to  direct  or  control  the  time  and  the  manner  of  execut- 
ing the  work,  or  interferes  and  assumes  control,  so  as  to 
create  the  relation  of  master  and  ser\^ant,  or  so  that  an 
injury  results  which  is  traceable  to  his  interference;  (6) 
or  if  the  employer  ratifies  the  unauthorized  wrong  of  the 
independent  contractor,"  ^ 

Under  the  general  rule,  it  is  likewise  commonly  held  that 
the  contractor  will  not  be  liable  to  third  persons  for  the 
negligent  act  of  his  subcontractor  unless  the  thing  con- 
tracted to  be  done  is  necessarily  a  nuisance,  or  the  injury 
is  a  direct  result  of  the  act  or  thing  which  the  independent 


^  Lytle    V.    Conover    Bldg.     Co.  statute  (Art.  2320,  La.  Rev.  Code) 

(1902),  12  Oh.  Dec.  346;  11  Am.  was  held  not  to  apply  to  the  man- 

Neg.  R.  641,  n.  ner  in  which  the  independent  con- 

*This    section    was    applied    in  tractor    performed    his    work    in 

Ridgeway  V.  Downing  Co.  (1900),  Gallagher    v.    Southwestern,    etc., 

109  Ga.  591;  34  S.  E.  1028;  7  Am.  Association    (1876),  28   La.    Ann. 

Neg.     Rep.    218.      An     analogous  943. 


130       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY, 

contractor  is  required,  to  do,  or  the  case  comes  within  one 
of  the  generally  accepted  exceptions.'*' 

That  a  proprietor  can  not  relieve  himself  from  liability 
simply  by  means  of  an  agreement  to  that  effect  with  the 
contractor  has  been  repeatedly  asserted.^"  "This  principle 
(that  the  proprietor  can  not  relieve  himself  from  liability 
by  an  agreement  with  the  contractor)  may  be  generalized 
and  enlarged  by  stating  that  no  proprietor  can  be  allowed, 


"  Salliotte  v.  King  Bridge  Co. 
(1903),  122  Fed.  378;  58  C.  C.  A. 
466;  65  L.  R.  A.  620;  16  Am. 
Neg.  R.  615,  n;  Green  v.  Soule 
(1904).  145  Cal.  96;  78  Pac.  337; 
Crudup  V.  Schreiner  (1901),  98 
Ills.  App.  337;  Aldritt  v.  Gillette, 
etc.,  Co.  (1902),  85  Minn.  206;  88 
N.  W.  741. 

"  Covington,  etc.,  Bridge  Co. 
V.  Steinbrock  (1899),  61  Ohio 
St.  215;  55  N.  E.  618;  76  Amer. 
St.  Rep.  325;  7  Am.  Neg.  R.  154; 
Vosbeck  v.  Kellogg  (1899),  7?: 
Minn.  176;  80  N.  W.  957;  Keys 
V.  Second  Baptist  Church  (1904), 
99  Me.  108;  59  Atl.  446;  17  Am. 
Neg.  Rep.  526.  In  a  note  to  Cov- 
ington, etc.,  Co.  V.  Steinbrock, 
supra,  are  cited  the  following 
cases:  Bower  v.  Peate  (1876),  1 
Q.  B.  D.  321;  15  Am.  Neg.  Rep. 
645;  Tarry  v.  Ashton  (1876),  1 
Q.  B.  D.  314;  7  Am.  Neg.  R.  157, 
n.;  Hughes  v.  Percival  (1883),  8 
App.  Cas.  443;  Dalton  v.  Angus 
(1881),  6  App.  Cas.  829;  7  Am. 
Neg.  Rep.  157,  n.;  Hole  v.  Rail- 
way Co.  (1861),  6  H.  &  N.  488; 
7  Am.  Neg.  R.  157,  n. ;  8  Id.  301, 
n.;  Gray  v.  Pullen  (1864).  5  B. 
&  S.  970;  7  Am.  Neg.  Rep.  158. 
n.;     Hardaker     v.     Idle     District 


(1896),  1  Q.  B.  D.  335;  Storrs 
v.  City  of  Utica  (1858),  17  N. 
Y.  104;  72  Amer.  Dec.  437; 
Spence  v.  Schultz  (1894),  103  Cal. 
208;  37  Pac.  220;  Stevenson  v. 
Wallace  (1876),  27  Gratt.  (Va.), 
77;  Water  Co.  v.  Ware  (1872), 
16  Wall.  566;  21  L.  Ed.  485; 
Black  v.  Finance  Co.  (1894), 
App.  Cas.  48;  7  Am.  Neg.  Rep. 
158,  n.  See,  also,  Pittsfield,  etc., 
Co.  V.  Shoe  Co.  (1902),  71  N.  H. 
522;  53  Atl.  807;  60  L.  R.  A.  116; 
D.wis  V.  Summerfield  (1903), 
133  N.  C.  325;  45  S.  E.  654;  63 
L.  R.  A.  492;  92  Amer.  St.  Rep. 
781;  16  Am.  Neg.  Rep.  611,  n. ; 
Sturges  V.  Society  (1881).  130 
-Mass.  414;  39  Amer.  Rep.  463; 
GoRHAM  V.  Gross  (1878),  125 
Mass.  232;  28  Amer.  Rep.  234; 
M  e  c  h  e  m  Agcy.,  Sees.  747-8 ; 
Whart.  Neg.,  Sec.  185;  Wood, 
Master  &  S.,  Sec.  316;  Shear.  & 
R.  Neg.,  Sec.  176;  Pickard  v. 
Smith  (1861),  10  C.  B.  (N.  S.), 
470;  7  Am.  Neg.  R.  158,  n. ;  8  Id. 
264,  n.;  Penny  v.  Council  (1898), 
2  C.  B.  392;  7  Am.  Neg.  Rep. 
158,  n. ;  Halliday  v.  Telephone  Co. 
(1899),  2  Q.  B.  392;  Lawrence  v. 
Shipman  (1873),  39  Conn.  586, 
589. 


employer's  exceptional,  liability. 


131 


in  this  way,  to  cast  off  any  of  the  absolute  duties  which  the 
law  puts  upon  him  by  virtue  of  his  ownership  of  property.*^ 
It  will  be  observed  that  hardly  any  two  authorities  agree 
on  the  enumeration  or  classification  of  the  exceptions  to 
the  general  rule  that  ordinarily  an  employer  is  not  answer- 
able for  the  acts  of  his  independent  contractor  or  of  the 
latter's  servants.  Each  enumeration  is  more  or  less  com- 
plete and  accurate,  and  each  classification  is  more  or  less 
logical,  but  nevertheless  arbitrary.  The  present  writer  has 
adopted  a  classification  which  appears  to  him  better  adapted 
to  an  exhaustive  discussion  of  the  subject  at  hand,  and 
without  attempting  any  complete  enumeration,  has  divided 
the  present  phase  of  the  general  subject  into  three  main 
sub-heads,  namely :  I.  Exceptions  depending  on  the  char- 
acter of  the  work  undertaken.  II.  Exceptions  depending 
on  the  character  of  the  obligation  owing  by  the  employer. 
And,  III.  Exceptions  determined  by  the  conduct  of  the 
employer;  and  in  this  and  the  next  three  chapters  these 
exceptions  will  be  discussed  in  the  order  named. ^^ 


"  Thomps.  Neg.,  Sec.  651.  The 
proprietor  cannot  relieve  himself 
from  the  liability  which  the  law 
imposes  upon  him  where  the, work- 
is  wrongful  per  se,  by  any  agree- 
ment which  he  may  make  with  the 
undertaker  of  the  work.  Ellis  v. 
Sheffield,  etc.,  Co.  (1853),  2  El. 
&  Bl.  967;  CoLGROVE  v.  Smith 
(1894),  102  Cal.  220;  36  Pac.  411 ; 
27  L.  R.  A.  590. 

^"  For  statements  as  to  the  ex- 
ceptions to  the  general  rule,  see 
the  following  cases :  Birmingham 
V.  McCary  (1887).  84  Ala.  469;  4 
So.  630;  Berg  v.  Parsons  (1898), 
156  N.  Y.  109;  50  N.  E.  957;  66 
Amer.  St.  Rep.  542;  41  L.  R.  A. 
391;  41  Am.  Neg.  Rep.  432;  Burd. 


Cas.  Torts,  406,  note;  Water  Co. 
V.  Ware  (1872),  16  Wall.  566; 
Clark  v.  Fry  (1858),  8  Ohio  St. 
358;  72  Amer.  Dec.  590;  Chicago 
V.  Robbins  (1862),  2  Black  (U. 
S.),  418;  Railroad  Co.  v.  Manning 
(1872),  15  Wall.  (U.  S.),  649; 
7  Am.  Neg.  Cas.  309;  Cuff  v. 
Newark,  etc.,  Railroad  (1870), 
35  N.  J.  Law,  17;  10  Amer.  Rep. 
205;  16  Am.  Neg.  Cas.  668,  n. 
For  further  illustrations  as  to  the 
liability  of  an  owner  or  employer 
for  the  negligence  of  an  inde- 
pendent contractor  and  his  serv- 
ants, see  the  cases  cited  in  note 
45,  Cooley  on  Torts,  Student's 
ed.,  p.  482.  See,  also,  Atlanta, 
ETC.,      Railroad      v.      Kimberley 


132       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Seci  66.     Doctrine  of  Collateral  Negligence. 

The  negligence  of  the  contractor  or  of  his  servants  for 
which  the  employer  is  held  answerable,  in  the  exceptional 
cases  enumerated,  is  often  spoken  of  as  not  collateral  to 
the  work,  but  directly  involved  in  it.^^  "The  rule  reliev- 
ing the  employer  from  the  acts  of  an  independent  con- 
tractor is  limited  to  collateral  or  casual  torts  of  the 
independent  contractor,  and  does  not  extend  to  injuries 
resulting  from  the  unlawfulness  of  the  work  itself,  or  to 
injuries  which  are  a  necessary  consequence  of  executing 
the  work  in  the  manner  provided  for  in  the  contract  or 
subsequently  prescribed  by  the  employer,  or  to  those  which 
are  caused  by  the  violation  of  some  absolute,  nondelegable 
duty  which  the  employer  is  bound  to  discharge,  or  to  those 
which  are  due  to  some  other  specific  act  of  negligence  on 
the  part  of  the  employer  himself."  ^^  If  the  act  or  neglect, 
which  produces  the  injury,  is  purely  collateral  to  the  work 
contracted  for,  and  entirely  the  result  of  the  wrongful  act 
of  the  contractor  and  his  workmen,  the  proprietor  is  not 


(1891),  87  Ga.  161;  13  S.  E.  277; 
27  Amer.  St.  Rep.  231 ;  Engel  v. 
Eureka  Club  (1893),  137  N.  Y. 
100,  104;  32  N.  E.  52;  22  Amer. 
St.   Rep.  695. 

"Burd.  Torts,  p.  141,  citing 
Hole  v.  Railway  Co.  (1861),  6 
H.  &  N.  488;  7  Am.  Neg.  R. 
157,  n.;  8  Id.  301,  n. ;  Bower  v. 
Peate  (1876),  1  Q.  B.  D.  321;  45 
L.  J.  (Q.  B.),  446;  11  Am.  Neg. 
R.  645;  Pye  v.  Faxon  (1892),  156 
Mass.  471;  31  N.  E.  640;  Water 
Co.  V.  Ware  (1872),  16  Wall.  (U. 
S.),  566. 

^*  Note  to  Salliotte  v.  King 
Bridge  Co.  (1903,  58  C.  C.  A.  466, 
122  Fed.  378),  in  65  L.  R.  A.  621. 


622.  "Jt  will  be  observed  that 
the  torts  which  are  covered  by 
the  descriptive  epithets  'collateral' 
and  'casual'  as  used  in  the  second 
form  of  statement,  are  identical 
with  those  which  fall  outside  the 
scope  of  the  exceptive  clauses  in 
the  third."  Id.,  p.  624.  "Ordi- 
narily an  independent  contractor's 
casual  tort,  that  is,  his  tort  which 
is  merely  collateral  to  the  prose- 
cution of  the  work,  is  not  one 
for  which  the  employer  can  be 
held  responsible."    Note  to  Kamp- 

MAN     V.    ROTHWELL     (1906,    TcX.). 

17  L.  R.  A.  (N.  S.),  758,  citing 
a  number  of  recent  cases. 


employer's   EXCEPl'IONAL   LIABILITY 


133 


liable;  but  if  tiie  injury  directly  results  from  the  work 
which  the  contractor  engaged  and  was  authorized  to  do, 
he  is  equally  liable  with  the  contractor.*^  When  the  main 
act  is  lawful,  and  the  contractor  incidentally  commits  an 
unlawful  act,  the  employer  is  not  liable.*^     "It  is  a  general 


"Chicago  V.  Robbins  (1862),  2 
Black  (U.  S.),  428;  Robbins  v. 
Chicago  (1866),  4  Wall.  (U.  S.). 
679;  Water  Co.  v.  Ware  (1872), 
16  Wall.  (U.  S.),  566,  576;  Hund- 
hausen  v.  Bond  (1874),  36  Wise. 
29;  O'Rourke  v.  Hart  (1870),  7 
Bosw.  (N.  Y.),  511;  9  Id.  301; 
Earl  V.  Beadleston  (1877),  10 
Jones  &  Sp.  (N.  Y.),  295;  Davie 
V.  Levy  (1887).  39  La.  Ann.  551; 
2  So.  395;  4  Amer.  St.  Rep.  225. 
Two  recent  cases  well  illustrate 
the  distinction  between  "collateral' 
and  "direct"  negligence  above  re- 
ferred to :  BoovER  V.  Wilbur 
(1900).  176  Mass.  482;  57  N.  E. 
1004;  8  Am.  Neg.  Rep.  246;  53 
L.  R.  A.  172;  Covington,  etc.,  Co. 
v.  Steinbrock  (1899),  61  Ohio 
St.  215;  55  N.  E.  618;  7  Am.  Neg. 
R.  154;  76  Amer.  St.  Rep.  375, 
and  note  thereto.  See,  also,  Kerr 
v.  Atlantic,  etc.,  Railroad  (1895), 
25  Can.  (S.  C),  197,  cited  in  65  L. 
R.  A.  655. 

*' Wilson  v.  White  (1883),  71 
Ga.  506;  51  Amer.  Rep.  269. 
Thus,  if  the  plaintiff  is  not  of 
right  entitled  to  support  for  his 
house,  and  where  the  gravamen 
of  the  action  is  not  the  unlawful- 
ness of  the  act  itself,  but  the 
negligent  manner  of  performing 
it,  it  seems  on  principle  that  the 
defendant's  having  let  the  work  to 
an  independent  contractor  skilled 


in  such  business  and  of  good 
repute,  would  exonerate  the  own- 
er ;  for  the  negligence  would  not 
be  his  but  would  be  that  of  the 
independent  contractor  and  the 
latter  would  be  liable.  Gayford 
V.  Nichols  (1854),  9  Exch.  702. 
The  proprietor  was  held  liable 
where  the  independent  contractor 
employed  to  construct  the  stone- 
work, drew  heavy  loads  of  stone 
over  the  sidewalk  in  front  of  the 
premises  so  as  to  render  the  walk 
defective  and  unsafe  and  an  in- 
jury to  a  pedestrian  resulted  there- 
from. Mullins  v.  Siegel,  etc.,  Co. 
(1904),  88  N.  Y.  Supp.  737.  A 
proprietor  was  held  not  liable  for 
the  negligence  of  an  independent 
contractor's  servant  in  throwing  a 
piece  of  lime  in  a  mortar  bed  in 
the  street,  causing  injury  to  a 
passerby,  as  the  work  itself  was 
not  a  nuisance  and  the  injury  did 
not  necessarily  result  therefrom. 
Strauss  v.  Louisville  (1900),  108 
Ky.  155;  55  S.  W.  1075.  A  high- 
way traveler  was  injured  by  a 
stone  thrown  from  a  blast  in  a 
quarry  (about  fifty  yards  from  a 
highway)  operated  by  a  contrac- 
tor in  securing  stone  to  improve 
defendant's  highway  under  con- 
tract ;  it  did  not  appear  that  de- 
fendant authorized  or  knew  of 
such  blasting;  the  stone  might 
have   been   quarried  bj'  less   dan 


134       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

rule  that  one  who  employs  another  to  do  a  piece  of  work 
is  not  liable  for  the  other's  collateral  negligence,  unless  the 
relation  of  master  and  servant  existed  betw^een  them.  The 
following  exceptions  to  the  general  rule  apply  to  and 
govern  this  case:  (1)  Whenever  an  injury  to  a  third  party 
results  from  the  employer's  failure  to  perform  a  duty  which 
he  owes  to  such  party,  he  will  not  be  permitted  to  avoid  his 
liability  by  letting  the  performance  of  the  work  to  another; 
(2)  One  who  has  a  piece  of  work  to  perform,  which,  in 
its  nature,  is  dangerous  to  others,  is  under  obligation  to 
see  that  it  is  carefully  performed  so  as  to  avoid  such  injury, 
and  he  can  not  delegate  the  obligation  to  an  independent 
contractor  and  thus  avoid  his  liability  in  case  the  work  is 
negligently  done  to  another's  injury."  ^'' 


I.    Character  of  Work. 

Sec.  67.     Contract  Work  a  Nuisance. 

A  well-established  exception  to  the  general  rule  is  that 
if  the  employer  contracts  for  a  nuisance  or  other  unlaw^ful 


gerous  but  more  expensive  mean? 
than  blasting.  It  was  held  that 
plaintiflf  could  not  recover  as  the 
injury  could  not  reasonably  have 
been  anticipated  and  was  entirely 
collateral  to  the  work  contracted 
for  and  not  its  probable  conse- 
quence. Symons  v.  Alleghany  Co. 
(1907),  105  Md.  254;  65  Atl.  1067. 
So,  also,  a  railroad  company  will 
not  be  liable  for  the  negligent 
performance  of  an  act  not  neces- 
sary to  the  execution  of  the  con- 
tract and  not  called  for  by  it. 
Chattahoochee,  etc.,  Railroad  v. 
Behrman    (1903),    136    Ala.    508; 


35  So.  132.  When  a  proprietor 
lets  a  contract  for  work  on  his 
property  to  an  independent  con- 
tractor and  that  contractor  in  per- 
forming the  same  commits  torts 
which  are  not  necessary  to  such 
performance,  the  owner  is  not 
liable  therefor.  Murtfelt  v.  New 
York,  etc.,  R.  (1886),  102  N.  Y. 
702;  25  Am.  &  Eng.  R.  Cas.  144. 
"  St.  Louis,  etc.,  R.  v.  Madden 
(1908),  ^^  Kans.  80;  93  Pac. 
586;  17  L.  R.  A.  (N.  S.),  788;  50 
Am.  &  Eng.  R.  Cas.  48,  syllabus 
by  court,  citing  numerous  cases. 


employer's   exceptional   LLVBILITY. 


135 


act,  he  remains  liable  to  any  person  injured  in  consequence 
of  the  performance  of  the  contract.^^  For  if  the  work 
contracted  for  is  unlawful,  as  where  it  naturally  constitutes 
or  creates  a  nuisance,  then  the  rule  exempting  the  employer 
does  not  apply,  but  both  the  employer  and  the  contractor 
are  liable  for  injuries  resulting  therefrom.^^  Judge 
Thompson  lays  down  the  rule  thus:  "If  the  work  con- 
tracted for  by  the  proprietor  of  the  real  property  is 
wrongful  per  sc,  that  is,  if,  in  the  ordinary  mode  of  doing 
it,  it  will  create  a  nuisance  or  if  it  involves  a  trespass  upon 
another's  property,  the  former  proprietor  will  be  liable  for 
any  injuries  which  may  result  from  it  to  a  third  person, 
although  the  work  is  done  by  a  person  exercising  an  inde- 
pendent employment  and  employing  his  own  servants."  ^^ 


""Ellis  V.  Sheffield  Gas  Co. 
(1853),  2  El.  &  Bl.  767;  Deford 
V.  State  (1863),  30  Md.  179; 
Kctcham  v.  Newman  (1894),  141 
N.  Y.  205;  36  N.  E.  197;  24  L. 
R.  A.  102. 

"•Congreve  v.  Smith  (1853),  18 
N.  Y.  79;  Chase  Cas.  Torts,  180; 
Creed  v.  Hartman  (1864),  29  N. 
Y.  591;  86  Amer.  Dec.  341.  If 
the  work  contracted  for  creates  a 
nuisance,  the  employer  is  answer- 
able. Burd.  Torts,  140,  citing  and 
quoting  from  Berg  v.  Parsons 
(1898),  156  N.  Y.  109,  and  citing 
Hole  v.  Railway  Co.  (1861),  6 
H.  &  N.  488;  Deford  v.  State, 
supra;  Woodman  v.  Metropoli- 
tan Railway  Co.  (1889),  149 
Mass.  335;  21  N.  E.  482;  4  L.  R. 
A.  213;  14  Amer.  St.  Rep.  427; 
12  Am.  Neg.  Cas.  80;  6  Rail.  & 
Corp.  L.  J..  72;  Thomas  v. 
Harrington  (1903),  72  N.  H.  45; 
54  Atl.  285;  65  L.  R.  A.  742;  16 
Am.  Neg.  Rep.  608,  n. 


^Thomp.  Neg.,  p.  648;  Leber 
V.  Minneapolis,  etc.,  Railroad 
(1882),  29  Minn.  256;  13  N.  W. 
31,  a  case  of  trespass;  Ellis  v. 
Sheffield,  etc.,  Co.  (1853),  2  El. 
&  B.  766;  Cuff  v.  Newark,  etc., 
Railroad  (1870),  35  N.  J.  Law, 
17.  574;  10  Amer.  Rep.  205;  16 
Am.  Neg.  Cas.  668,  n. ;  Kellogg 
V.  Payne  (1866),  21  Iowa,  578; 
Robbins  v.  Chicago  (1866),  4 
Wall.  (U.  S.),  657;  Chicago  v. 
Robbins  (1862),  2  Black  (U.  S.), 
418;  Water  Co.  v.  Ware  (1872), 
16  Wall.  (U.  S.),  566,  576;  Hole 
V.  Sittingbourne,  etc..  Railroad, 
supra;  Hundhausen  v.  Bond 
(1874),  36  Wise.  29;  Lockwood  v. 
New  York  (1858).  2  Hilt.  (N. 
Y.),  66;  Keegan  v.  Western 
Railroad  (1853),  8  N.  Y.  175;  59 
Amer.  Dec.  476;  Clark  v.  Fry 
(1858),  8  Ohio  St.  358;  72  Amer. 
Dec.  590.  Compare  Hill  v.  New 
River  Co.  (1868),  9  B.  &  S.  303; 
Wabash,  etc.,  Railroad  v.  Farver 


136       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


The  owner  can  not,  by  any  contract,  relieve  himself  of 
duties  resting  upon  him  as  owner  of  real  estate,  not  to  do 
or  suffer  to  be  done  upon  it  that  which  will  constitute  a 
nuisance,  and  therefore  an  invasion  of  the  rights  of  others.^^ 
It  is  clear  that  where  the  creation  of  a  nuisance  is  a  direct 
and  necessary  incident  of  the  stipulated  work  as  a  whole, 
the  principal  employer  is  liable.^^ 


(1887),  111  Ind.  195,  198;  12  N. 
E.  296;  60  Amer.  Rep.  696;  31 
Am.  &  Eng.  R.  Cas.  134  (rule  so 
stated,  but  the  proprietor  was  ex- 
onerated and  the  contractor  held 
liable)  ;  Davie  v.  Levy  (1887),  39 
La.  Ann.  551;  2  So.  395;  4  Amer. 
St.  225. 

=' Chicago  V.  Robbins  (1862),  2 
Black  (U.  S.),  418;  Clark  v.  Fry 
(1858),  8  Ohio  St.  358;  72  Amer. 
Dec.  590;  Hughes  v.  Railroad  Co. 
(1883),  39  Ohio  St.  461;  15  Am. 
&  Eng.  R.  Cas.  100;  Curtis  v. 
KiLEY  (1891),  153  Mass.  123;  26 
N.  E.  421 ;  Burd.  Cas.  Torts, 
403;  Thomas  v.  Harrington 
(1903),  72  N.  H.  45;  54  Atl.  285; 
65  L.  R.  A.  742;  16  Am.  Neg.  R. 
608,  n. ;  Southern  Ohio  Railroad 
V.  MoREY  (1890),  47  Ohio  St.  207; 
24  N.  E.  269;  7  L.  R.  A.  701;  43 
Am.  &  Eng.  Ry.  Cas.  97;  Haw- 
VER  V.  Whalen  (1892),  49  Ohio 
St.  69;  29  N.  E.  1049;  14  L.  R. 
A.  828;  McCarrier  v.  Hollister 
(1902),  15  So.  Dak.  366;  89  N. 
W.  862;  11  Am.  Neg.  R.  641;  91 
Amer.  St.  Rep.  695 ;  Carlson  v. 
Stocking  (1895),  91  Wise.  432; 
65  N.  W.  58 ;  Holliday  v.  National 
Telegraph  Co.  (1899),  2  Q.  B. 
392.  See,  also,  Dillon  v.  Hunt 
(1891),  105  Mo.  154;  16  S.  W. 
516;  24  Amer.  St.  Rep.  374. 


-Dressell  v.  Kingston  (1884), 
32  Hun,  533;  Salves  v.  New  City 
Gas  Co.  (1879,  Quebec),  2  L.  N. 
S.  C.  97  (horse  fell  into  a  pit 
excavated  in  the  street  of  a  city)  ; 
Seymour  v.  Cummins  (1889),  119 
Ind.  148;  21  N.  E.  549;  52  L.  R. 
A.  126;  Florsheim  v.  DuUaghan 
(1895),  58  Ills.  App.  593.  See 
other  cases  cited  in  65  L.  R.  A. 
752.  For  Missouri  cases  on  the 
question  of  the  liability  of  one  for 
a  nuisance  on  his  own  premises, 
see  Dillon  v.  Hunt  (1881),  11  Mo. 
App.  246;  s.  c.  (1882),  82  Mo. 
150.  The  reasoning  of  the  Court 
of  Appeals  is  approved  in  Dillon 
V.  Hunt  (1891),  105  Mo.  154;  16 
S.  W.  516;  24  Amer.  St.  Rep.  374. 
Cf.,  Perry  v.  Lord  (1885),  17 
Mo.  App.  212.  The  rule  that  one 
who  employs  another  to  commit 
a  nuisance  or  a  trespass  must 
answer  for  it,  although  he  exer- 
cises  no  control  over  that  other 
as  to  the  mode  employed  by  him 
to  reach  the  unlawful  result,  rests 
upon  the  idea  that  the  employer 
becomes  a  co-trespasser  by  reason 
of  trespassing  or  participating  in 
the  work  that  is  done,  and  not 
on  the  doctrine  of  respondeat  su- 
perior. Kellogg  v.  Payne  (1886), 
21  Iowa,  575,  per  Cole,  J.  In 
Maryland    a   proprietor   was   held 


employer's  exceptional  liability. 


137 


Some  decisions  make  a  distinction  between  cases  where 
the  wrong  done  is  something  within  the  immediate  control 
of  the  contractor  or  of  his  servants,  and  where  it  proceeds 
from  something  left  by  them  in  the  street,  in  the  nature  of 
a  public  nuisance.^^  Numerous  cases  hold  that  a  city  is 
liable  for  injuries  arising  from  dangerous  nuisances  in  its 
streets,  such  as  unguarded  excavations,  although  the  negli- 
gence is  that  of  contractors  of  public  work  with  the  city.^^ 

It  has  been  held  in  a  leading  Indiana  case  that  it  is  not 
necessarily  a  nuisance  to  operate  a  portable  steam  engine, 
in  a  careful  manner,  in  close  proximity  to  a  public  highway ; 
so  that  if  it  is  operated  negligently  by  an  independent  con- 
tractor, engaged  in  pumping  water  out  of  an  excavation 
for  a  railroad  company,  whereby  a  traveler's  horse  is 
frightened,  the  company  is  not  liable.^^     In  another  leading 


not  liable  for  the  contractor's  act 
on  the  principle  of  respondeat  su- 
perior, yet  if  proof  showed  the 
building  was  so  constructed  as  to 
constitute  a  nuisance,  he  would  be 
liable;  otherwise,  if  erected  in  an 
ordinarily  substantial  and  secure 
manner  and  it  was  overthrown  by 
extraordinary  causes.  Deford  v. 
State  (1863),  30  Md.  179. 

^  Blumb  v.  City  of  Kans.\s 
(1884),  84  Mo.  112;  54  Amer. 
Rep.  87;  Herrington  v.  Lansing- 
burgh  (1888),  36  Hun  (N.  Y.). 
598;  110  N.  Y.  145;  17  N.  E. 
728;  10  Amer.  St.  Rep.  348.  Cf., 
Kelly  V.  Mayor  (1854),  11  N.  Y. 
433;  Pack  v.  Mayor  (1853),  8  N. 
Y.  222.  Contra,  Log.\nsport  v. 
Dick  (1880),  70  Ind.  80;  36 
Amer.   Rep.    166. 

=*  Beatrice  v.  Rcid  (1894),  41 
Nebr.  214;  59  N.  W.  770;  Hani- 
ford  V.   Kansas  City    (1890),   103 


Mo.  172;  15  S.  W.  753;  Bauer  v. 
Rochester  (1885),  59  Hun  (N. 
Y.),  615;  12  N.  Y.  Supp.  418; 
Turner  v.  Newburgh  (1888).  109 
N.  Y.  301;  16  N.  E.  344;  4  Amer. 
St.  Rep.  453.  (See  other  cases 
cited  in  Sec.  139,  et  seq.) 

''Wabash,  etc..  Railroad  v. 
Farver  (1887).  Ill  Ind.  195;  12 
N.  E.  296;  60  Amer.  Rep.  696;  31 
Am.  &  Eng.  R.  Cas.  134.  In  a 
case  where  a  plaintiff  was  entitled 
to  support  for  his  buildings  as 
well  as  for  his  land,  it  was  not  a 
defense  against  liability  for  negli- 
gence in  such  an  action,  that  the 
defendant  contracted  with  an  ex- 
perienced and  skillful  excavator 
to  do  the  work.  These  cases  are 
referable  to  the  class  holding 
that  where  one  does  on  his  own 
land  an  act  per  se  a  nuisance  he 
is  answerable  therefor  although 
the  work  is  done  by  an  indepen- 


138       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Indiana  case  an  action  was  held  maintainable  where  the 
injury  charged  v/as  that  a  drainage  ditch  obstructed  the 
plaintiff's  access  to  his  own  premises,  that  the  soil  of  his 
lot  fell  into  it,  and  that  stagnant  and  filthy  water  was  al- 
lowed to  remain  in  it.^*^ 

In  the  category  of  liability  of  an  employer  for  injuries 
occasioned  by  the  omission  of  some  duty  imposed  on  him, 
is  the  case  of  a  continuing  nuisance;  for  a  man  must  not 
suffer  a  nuisance  to  continue  on  his  premises,  to  the  injury 
of  others,  although  he  was  not  responsible  for  its  creation.^'^ 
On  the  other  hand,  it  has  been  held  that  a  railroad  company 
which  has  not  accepted  its  road  from  an  independent  con- 
tractor for  its  construction  at  the  time  a  third  person  re- 
ceived injuries  from  a  nuisance  can  not  be  held  to  have 
ratified  any  act  of  the  contractor  by  which  the  nuisance  was 


dent  contractor.  Stevenson  v. 
Wallace  (1876),  27  Gratt.  (Va.). 
n,  91;  Bower  v.  Peate  (1876),  1 
Q.  B.  Div.  321;  11  Am.  Neg. 
Rep.  645. 

^  Seymour  V.  Cummins  (1889), 
119  Ind.  148;  21  N.  E.  549;  5  L. 
R.  A.  126.  The  plaintifif,  a 
worker  in  marble,  was  held  en- 
titled to  recover  where  his  monu- 
ments were  injured  by  large 
quantities  of  soot,  etc.,  which  col- 
lected on  defendant's  iron  smoke 
stack  and  were  blown  on  to  the 
monuments  on  plaintiff's  prem- 
ises, and  as  the  injury  was  the 
natural  result  of  erecting  such  a 
smoke  stack  at  that  place,  the 
defendant  was  not  protected  by 
its  having  been  erected  by  an  in- 
dependent contractor.  Skelton  v. 
Fenton,  etc.,  Co.  (1894),  100  Mich. 
87;  58  N.  W.  609.  The  defend- 
ant city  had  made  a  contract  with 
a  party  for  removing  carcasses  of 


animals  dying  or  killed  in  its 
limits.  On  one  occasion  after 
many  mules  had  been  destroyed 
by  a  fire,  the  mayor,  in  order  to 
obviate  the  nuisance  which  would 
have  resulted  from  conveying 
them  through  the  streets  arranged 
with  the  contractor's  servant  to 
throw  them  in  the  river.  The 
latter  took  a  convenient  road  to 
the  river  and  threw  them  in  at 
a  point  temporarily  overflowed 
and  concealing  plaintiff's  quarry. 
The  carcasses  were  not  carried 
away  but  sank  into  the  quarry, 
so  that  plaintifif  could  not  reopen 
it.  For  the  injury  so  caused,  the 
city  was  held  not  answerable. 
That  tlie  act  was  negligent  or  the 
consequence  proximate  is  not  un- 
questionable. HiLSDORF  v.  St. 
Louis  (1869),  45  Mo.  94;  100 
Amer.  Dec.  352. 

"  Osborn    v.    Union    Ferry    Co. 
(1869),  53  N.  Y.  629;  Burgess  v. 


employer's  exceptional,  liability. 


139 


created,  in  the  absence  of  any  evidence  showing  that  it  had 
knowledge  thereof.-^  If  the  contractor  is  the  author  of 
the  nuisance  and  is  the  primary  wrong-doer,  he  will  be 
liable  in  damages  to  the  person  injured  in  consequence  of 
it,  although  the  employing  corporation  may  also  be  liable 
for  a  violation  of  its  duty   in  suffering  the  nuisance  to 


remam 


29 


Sec.  68.     Contract  Work  Unauthorized. 

"Where  the  necessary  authority  to  undertake  the  speci- 
fied work  has  not  been  obtained,  or  where  it  can  not  be 
performed  without  violating  an  express  legislative  enact- 
ment, the  mere  fact  tliat  it  is  entrusted  to  an  independent 
contractor  will  not  relieve  the  person  for  whose  benefit  it 
is  done  from  liability  for  such  injuries  as  its  execution  may 
produce."  ^'^  Thus  it  is  asserted  in  a  California  case,  that 
one  who  is  injured  by  falling  through  a  wooden  trap  door 
over  an  excavation  in  a  sidewalk  can,  where  such  cover- 
ings are  prohibited  by  an  ordinance  of  the  city,  recover 
against  the  owner  of  adjoining  premises,  notwithstanding 


Gray  (1845),  1  C.  B.  578;  Matheny 
V.  Wolffs  (1865),  2  Duv.  (Ky.), 
137. 

^Atlanta,  etc..  Railroad  Co. 
V.  KiMBERLY  (1894),  87  Ga.  161; 
13  S.  E.  277;  27  Amer.  St.  Rep. 
231. 

*Howarth  v.  McGugan  (1893), 
25  Ont.  396;  47  Am.  &  Eng.  Corp. 
Cas.  133.  Cf.,  Stewart  v.  Cali- 
fornia Imtrovement  Co.  (1900), 
131  Cal.  125;  61  Pac.  280;  52  L. 
R.  A.  205;  Burd.  Cas.  Torts.  412 
(steam-roller  negligently  run,  city 
held  liable  and  contractor  exempt.) 

^  Note  to  Thomas  v.  Harring- 


ton (1903,  72  N.  H.  45),  in  65  L. 
R.  A.  746,  citing,  inter  alia.  Shea 
V.  River,  etc..  Board  (1880),  Jr. 
L.  R.,  6  C.  L.  179.  "It  will  be 
observed  that,  by  changing  the 
logical  standpoint,  the  cases  which 
have  been  made  to  turn  upon  this 
principle  may,  without  difficulty, 
be  brought  within  the  purview  of 
another  principle,  viz. :  that  a  per- 
son who  is  subject  to  a  statutory 
duty,  must  at  his  peril  see  that 
it  is  fulfilled,  whether  the  work 
to  which  it  is  incident  is  or  is 
not  let  out  to  an  independent  con- 
tractor."  Id.,  748. 


140       INDEPENDENT    CONTRACTORS    AND    THEIR    UABILITY. 

that  a  few  days  before  the  accident  such  owner  employed  a 
carpenter,  who  was  an  independent  contractor,  to  repair 
the  door  and  the  neghgence  of  the  latter  contributed  to  the 
accident.  =^^  And  when  a  company,  without  the  necessary 
municipal  authority,  employed  a  contractor  to  open  trenches 
in  the  streets  of  a  city  and  a  person  was  injured  by  fahing 
over  a  heap  of  stones  left  by  the  contractor,  the  company 
was  liable  for  the  contractor's  unlawful  act.^^  Several 
rulings  on  this  point  have  been  made  in  New  York.  Thus, 
it  is  said,  that  persons  who,  without  special  authority, 
make  or  continue  a  covered  excavation  in  a  public  street  or 
hiMiway,  for  a  private  purpose,  should  be  responsible  for 
all  injuries  to  individuals  resulting  from  the  street  or  high- 
way being  thereby  less  safe  for  its  appropriate  use,  in  the 
absence  of  contributory  negligence ;  ^s  and  again,  if  a  per- 


"  Barry  v.  Terkildsen  (1887), 
72  Cal.  254 ;  13  Pac.  657 ;  1  Amer. 
St.  Rep.  55.  Where  a  building  is 
erected  in  a  manner  forbidden  by 
ordinance  or  statute  and,  in  con- 
sequence, it  falls  or  collapses,  the 
owner  is  liable  for  any  damage  or 
injury  occasioned  thereby;  Walker 
V.  McMillan  (1882),  6  Can.  S.  C. 
R.  241;  Pitcher  v.  Lennon  (1886), 
16  Misc.  609;  38  N.  Y.  Supp. 
1007. 

»'EUis  V.  Gas,  etc.,  Co.  (1853), 
23  L.  J.  Q.  B.  42 ;  2  El.  &  Bl.  767. 
In  an  Australian  case  it  was  held 
that  one  who  had  contracted  with 
a  local  council  to  make  or  repair 
a  street,  under  conditions  prohib- 
iting subletting  without  its  con- 
sent, and  requiring  ol)structions 
to  be  fenced  and  lighted,  was  not 
liable  to  one  injured  by  stumbling 
over  rubbish  unprotected  by  fence 
or  light,  although  it  was  left  there 


by  one  to  whom  he  had  without 
consent  sublet  a  part  of  the  work; 
PhilHps  V.  Byrne  (1877),  3  Vict. 
L.  R.  179.  By  an  English  act, 
commissioners  appointed  to  im- 
prove a  harbor,  were  empowered 
with  the  ballast  board's  sanction, 
to  exhibit  lights,  etc.,  to  guide 
ships  navigating  the  harbor.  The 
contractor  employed  to  execute 
the  work  was  held  guilty  of  negli- 
gence is  not  obtaining  such  sanc- 
tion to  set  up  lights  on  the  ends 
of  piles  during  the  progress  of 
the  operations,  but  the  commis- 
sioners were  held  not  liable  for 
injury  to  a  vessel  due  to  want  of 
such  lights.  This  decision  is  of 
doubtful  value  on  the  second 
point.  Gilbert  v.  Halpin  (1858, 
Exch.),  3  Ir.  Jur.  (N.  S.).  300; 
Pigot,  C.  B.,  dissented. 

•^'Congreve  v.  Smith   (1858),  18 
N.  Y.  79;  Chase  Cas.  180. 


employer's  exceptional  liability. 


141 


son  who  is  not  authorized  to  excavate  in  a  highway  employs 
a  contractor  to  do  so,  he  is  Hable  for  injuries  inflicted  by 
the  contractor  in  doing  the  work,  though  he  would  not  be 
so  liable  if  he  iiad  first  obtained  a  license  to  excavate.'"'* 
On  the  other  hand,  it  has  been  held  in  New  York  lately 
that  a  contractor  engaging  to  erect  a  building,  does  not 
become  liable  to  a  penalty  imposed  by  a  city  ordinance  pro- 
hibiting the  deposit  of  the  material  in  the  street  without  a 
permit,  because  the  ordinance  has  been  violated  by  an  in- 
dependent subcontractor  where  the  original  contractor  had 
no  authority  to  direct  him  in  the  matter.  Nor  will  the 
original  contractor's  failure  to  procure  such  permit  make 
him  liable  where  there  is  no  necessity  for  depositing  the 
material  in  the  street,  and  he  does  not  know  that  it  will 
be  done.^^ 

Sec.  69.     Contract  Work  Unlawful,  other  than  Nuisance. 

An  eminent  author  has  declared  that  "it  is  at  least  true 
that  where  the  contract  calls  for  the  doing  of  an  act  that 
is  itself  wrongful,  the  employer  remains  liable  for  all  the 
consequences,  practically  as  a  joint  tort  feasor  with  the 
contractor."  ^^  "When  the  thing  contracted  to  be  done  is 
tortious  or  unlawful,  merely  doing  it  by  another  person, 
under  any  form  of  contract,  will  not  relieve  the  employer 


="  Creed  v.  Hartman  (1864),  29 
N.  Y.  591 ;  86  Amer.  Dec.  341. 

''Buflfalo  V.  Clement  (1892),  19 
N.   Y.   Supp.  846. 

'•Huflf.  Agcy.,  2cl  cd.,  Sec.  220. 
Where  work  is  contracted  for  is 
unlawful,  the  employer  is  liable; 
Burd.  Torts,  pp.  139-140,  quoting 
Berg  v.  Parsoxs  (1898),  156  N. 
Y.  109,  and  citing  Ellis  v.  Slieffield 


Gas  Co.  (1853),  2  El.  &  B.  767;  23 
L.  J.  Q.  B.  42;  Spcnce  v.  Schultz 
(1894),  103  Cal.  208;  37  Pac.220; 
McDonnell  v.  Rifle  Room  Co. 
(1888),  71  iMich.  61;  38  N.  W. 
681;  Crisler  v.  Ott  (1894).  72 
]\liss.  166;  16  So.  416;  Ketcham 
V.  Newman  (1894),  141  N.Y.  205. 
209;  36  N.  E.  197;  24  L.  R.  A. 
102. 


142       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


from  responsibility."  ^^  The  question  what  kind  of  work 
is  unlawful  or  wrongful  per  se  within  the  rule  which  charges 
the  proprietor  for  the  injurious  consequences  of  work  being 
done  by  an  independent  contractor  "would  conduct  us  into 
an  infinite  variety  of  detail."  ^^  It  is  clear  that  a  proprietor 
who  makes  a  contract  for  the  doing  of  an  act  upon  his  land 
which  will  necessarily  require  the  commission  of  a  trespass 
upon  the  premises  of  an  adjoining  owner  will  become  liable 
for  such  trespass,  if  committed,  and  it  will  be  no  defense  that 
it  was  committed  by  an  independent  contractor."'^  It  is 
obvious  that  where  the  work  which  the  contractor  engages 
to  do  is  wrongful  per  se,  the  owner  and  the  contractor  will 
occupy  the  position  of  joint  tort  feasors,  and  the  person 
damnified  may  recover  against  either  or  both.^*^  Both  the 
owner  and  the  contractor  will  be  liable  where  the  act  con- 
tracted to  be  done  is  itself  wrongful.'*^      But   where  one 


^  Barrows  on  Neg.,  sec.  62 
(black-letter),  citing  Ellis  v.  Gas 
Co.,  supra;  Blessington  v.  City  of 
Boston  (1891),  153  Mass.  409;  26 
N.  E.  1113;  Sturges  v.  Society 
(1881),  130  Mass.  414;  39  Amer. 
Rep.  463;  Curtis  v.  Kiley  (1891), 
153  Mass.  123;  26  N.  E.  421; 
Burd.  Cas.  403 ;  Woodman  v.  Met- 
ropolitan Railroad  Co.  (1889), 
149  Mass.  335;  21  N.  E.  486;  4  L. 
R.  A.  213 ;  14  Amer.  St.  Rep.  427 ; 
6  R.  &  Corp.  L.  J.  72 ;  12  Am.  Neg. 
Cas.  80;  Babbage  v.  Powers 
(1891),  130  N.  Y.  281;  29  N.  E. 
132;  14  L.  R.  A.  398. 

''Thomps.  Neg.  649.  Frequent 
instances  are  presented  in  this  and 
the  next  three  chapters.  In  a 
recent  leading  case  it  is  said  that 
the  construction  of  the  brick  work 
of  a  house  abutting  on  a  street 
is  not  regarded  as  an  enterprise 
inherently  dangerous  to  the  users 


of  the  street,  so  as  to  make  the 
proprietor  liable  for  the  injuries 
to  a  pedestrian  by  the  placing  of  a 
plank  across  the  sidewalk  for  the 
use  of  laborers  in  carrying  brick 
and  mortar  into  the  building; 
Richmond  v.  Sitterding  (1903), 
101  Va.  354;  43  S.  E.  562;  99 
Amer.  St.  Rep.  879;  65  L.  R.  A. 
445 ;  16  Am.  Neg.  R.  609,  n. 

^Ketcham  v.  Cohn  (1893),  51 
N.  Y.  St.  R.  213;  22  N.  Y.  Supp. 
181;  Waller  v.  Lasher  (1890),  37 
Ills.  App.  609;  Coleman  v.  State 
(1892),  134  N.  Y.  564;  31  N.  E. 
902. 

^-Kollockv.  Madison  (1893),  84 
Wise.  458;  54  N.  W.  725. 

"Murray  v.  Arthur  (1901),  98 
Ills.  App.  331;  Wilbur  v.  White 
(1903),  98  Me.  191;  56  Atl.  567; 
16  Am.  Neg.  R.  606,  n. ;  Crisler 
V.  Ott  (1894),  72  Miss.  166;  16 
So.   416. 


EMPLOYER  S   EXCEPTIONAL  LIABILITY. 


143 


railroad  contracted  with  another  to  construct  its  road  and 
the  latter  unnecessarily  erected  an  embankment,  which 
flooded  plaintiff's  lot,  the  first  railroad  company  was  held 
not  liable."*- 

Sec.  70.     Same,  Calling  for  Injurious  Result. 

If  the  employer  contracts  for  improper  materials  or  an 
unsafe  plan,  or  generally  an  unsafe  result,  he  remains  liable 
for  damages  occasioned  thereby,  although  the  work  is  done 
by  an  independent  contractor.'*^  "It  is  as  sound  a  rule  of 
law,  as  of  morals,  that  when,  in  the  natural  course  of  things, 
injurious  consequences  will  arise  to  another  from  an  act 
which  I  cause  to  be  done,  unless  means  are  adopted  by 
which  such  consequences  may  be  prevented,  I  am  bound, 
so  far  as  it  lies  in  my  power,  to  see  to  the  doing  of  that 
which  is  necessary  to  prevent  the  mischief.  Failure  to  do  so 
would  be  culpable  negligence  on  my  part."  ■*^''  "One  who 
causes  work  to  be  done  is  liable  for  the  acts  of  employees 
of  an  independent  contractor,  where  the  resulting  injury, 
instead  of  being  collateral  and  flowing  from  the  negligent 
act  of  the  employee  alone,  is  one  that  might  have  been  anti- 
cipated as  a  direct  or  probable  consequence  of  the  per- 
formance of  the  work  if  reasonable  care  was  omitted  in 
the  course  of  the  performance."  ^•^'' 


*^  Chattahoochee,  etc.,  R.  v. 
Zebcrman  (1903),  136  Ala.  132; 
30  Am.  &  Eng.  R.  Cas.  (N.  S.), 
929;  16  Amer.  Neg.  R.  101,  n. 

"Huff.  Agcy.,  2d.  ed..  Sec.  221, 
citing  GoRH.\M  v.  Gross  (1878), 
125  Mass.  232;  28  Amer.  Rep.  234. 

"»  Norwalk  Gas  Co.  v.  Norwalk 
(1893),  63  Conn.  496,  528;  28  Atl. 
32,  per  Fenn,  J. 

*'•'  R.\ILKO.\D       Co.       V.       M  0  R  E  Y 

(1890),   47   Ohio   St.   207;   24   N. 


E.  269;  43  Am.  &  Eng.  R.  Cas. 
97;  7  L.  R.  A.  701.  To  the  same 
effect  D.wiE  V.  Levy  (1887),  39 
La.  Ann.  551;  2  So.  395:  Wert- 

HEIMER    V.     Saundebs     (1897),    95 

Wise.  573;  37  L.  R.  A.  146;  70 
N.  W.  824.  One  can  not  escape 
liability  by  contracting  for  that 
the  necessary  or  probable  effect 
of  which  would  be  to  injure  oth- 
ers; Evans  v.  Murphy  (1893),  87 
Md.  498;  40  Atl.  109;  Bonap.\rte 


144       INDEPENDENT    CONTRACTORS    AND    TiiEIK    LIABILITY. 

To  establish  the  owner's  liability  on  the  ground  that  the 
injury  complained  of  was  the  natural  and  probable  conse- 
quence of  the  contract,  *'it  is  not  enough  to  show  that  the 
employer  supplied  one  or  more  of  the  instrumentalities 
which  were  necessary  for  the  execution  of  the  stipulated 
work.  It  does  not  follow  that,  because  those  instrumentali- 
ties were  capable  of  being  so  used  as  to  constitute  a 
nuisance,  or  of  being  used  in  an  improper,  negligent  or 
mischievous  manner,  an  injury  of  which  it  is  an  efficient 
cause  must  therefore  be  regarded  as  a  natural  consequence 
of  the  permission  to  use  it.  The  extent  of  the  authority 
conferred  by  the  employer  is,  to  execute  the  contract  by 
a  proper  and  reasonable  use  of  any  means  and  appliances 
which  he  furnishes.  .  .  .  Nor  can  the  liability  of  an 
employer,  for  the  careless  management  of  an  appliance,  be 
inferred  from  the  mere  fact  that  there  was  an  understand- 
ing between  him  and  the  contractor  that  such  an  appliance 
was  to  be  used."  *"* 


V.  Wiseman  (1899),  89  Md.  12; 
42  Atl.  918;  44  L.  R.  A.  482; 
Burd.  Cas.  Torts.  404;  Pye  v. 
Faxon  (1892),  175  Mass.  185;  55 
N.  E.  894;  78  Amer.  St.  486; 
Carrico  v.  West  Virginia,  etc.. 
Railroad  (1891),  35  W.  Va.  389; 
14  S.  E.  12;  (1894),  39  W.  Va. 
86;  19  S.  E.  571;  24  L.  R.  A.  50. 
"In  other  cases  the  interposition 
of  an  independent  contractor  has 
been  held  to  be  no  protection  to 
the  defendant,  for  the  reason  that 
the  stipulated  work  was  to  be 
executed  on  land  owned  or  occu- 
pied by  certain  incidents  which 
would  be  likely  to  produce  injury 
to  the  adjoining  premises,  unless 
the  appropriate  precautions  were 
taken.      Thu.s,     the     plaintiff     has 


been  allowed  to  recover  where 
the  work  of  making  an  excavation 
for  a  building  was  so  negligently 
executed  that  a  building  on  the 
adjoining  premises  was  damaged 
by  the  withdrawal  or  weakening 
of  its  lateral  support."  Note  to 
Jacobs  v.  Fuller,  etc.,  Co.  (1902, 
Ohio),  in  65  L.  R.  A.  848.  One 
who  employs  a  contractor  to  do 
a  particular  act  is  liable  for  the 
contractor's  injurious  acts  "which 
flow  out  of  the  fulfillment  of  the 
contract."  Pitts  v.  Kingsbridge, 
etc..  Board  (1871),  25  L.  T.  (N. 
S.),  195. 

**  Note  to  Salliotte  v.  King. 
ETC.,  Co.  (1903),  58  C.  C.  A. 
466;  122  Fed.  378,  in  65  L.  R.  A. 
at  p.   642,   citing  cases. 


employer's  exceptional  llvbility. 


145 


If  tlie  contract  in  its  purview  contemplates  an  act  neces- 
sarily injurious  to  the  rights  or  property  of  another,  the 
contractee  is  liable  for  resulting-  damage;  as  where  a  canal 
company  contracted  for  the  repair  of  its  canal  with  soil  to 
be  taken  from  certain  land  belonging  to  another,  the  re- 
moval of  which  was  of  necessity  injurious  to  such  other's 
property;"*""*  and  where  a  contract  stipulates  for  the  erec- 
tion of  a  wall  of  insufficient  tliickness  in  consequence  of 
which  it  falls,  the  proprietor  must  pay  the  damages;"*"  so 
also,  if  the  plans  are  defective  or  the  materials  directed  to 
be  used  arc  unsuited,  the  owner  will  be  liable  for  damage 
or  injury  occasioned  thereby.'*'  If  the  acts  done  by  the 
contractor  and  causing  the  injury  were  done  in  pursuance 
of  the  contract  itself,  or  otherwise  under  the  direction  of  a 
city,  the  city  will  be  liable."*^    It  is  said,  in  a  Kentucky  case, 


"  Williams  v.  Irrigation  Co. 
(1892),  96  Cal.  15;  30  Pac.  961 ;  31 
Amer.  St.  Rep.  172;  Crenshaw  v. 
Ullman  (1893),  113  Mo.  633;  20 
S.  W.  1077. 

'"Treadwell  v.  New  York 
(1861),  1  Daly  (N.  Y.),  128. 

*=  Meier  v.  Morgan  (1892),  82 
Wise.  289;  52  N.  W.  174;  33 
Amer.  St.  Rep.  39.  If  an  exca- 
vation result  in  a  trespass  upon 
adjacent  property,  in  consequence 
of  the  work  being  done  in  con- 
formity with  the  plans  furnished 
by  the  proprietor,  he  will  be  re- 
sponsible, although  the  work  was 
done  by  an  independent  contrac- 
tor; Mamor  v.  Lussem  (1872),  65 
Ills.  484.  Where  an  employe  of 
a  person  hired  to  build  a  water 
tank  was  injured  by  its  bursting 
during  a  test  because  of  defective 
rivet  bolts,  and  it  was  shown  that 
the  owner's  engineer  was  respon- 


sible for  the  substitution  of  an 
insufficient  method  of  making 
these  holes,  instead  of  having  ihem 
drilled  as  required  by  the  plans 
prepared  by  the  owner,  the  em- 
ployer was  held  liable;  Duerr  v. 
Consolidated  Gas  Co.  (1903),  83 
N.   Y.   Supp.   714. 

'"Nevins  v.  Peoria  (1866),  41 
His.  515;  Robbins  v.  Chicago 
(1866),  4  Wall.  (U.  S.).  657.  679; 
2  Black  (U.  S.),  418;  Cf,  also, 
Ellis  v.  G.^s  Co.  (1853),  2  El.  & 
Bl.  767;  Hole  v.  Sittingbourne, 
ETC.,  Railro.\d  (1861),  6  Hurl.  & 
N.  497;  7  Am.  Neg.  R.  157,  n. ; 
8  Id.  301,  n. ;  Newton  v.  Ellis 
(1885).  5  El.  &  Bl.  115;  Sc.\mmon 
V.  Chicago  (1861),  25  Ills.  424; 
79  Amer.  Dec.  334;  14  Am.  Neg. 
Cas.  418.  n.;  Lowell  v.  Boston, 
ETC.,  R.\iLRo.\D  (1839),  23  Pick. 
24 ;  34  Amor.  Dec.  33 ;  St.  Paul  v. 
Seitz    (1859),    3    Minn.    297;    11 


146       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

that  a  city  is  responsible  to  property  owners  for  unneces- 
sary injury  to  their  property  in  making  local  improvements 
where  the  work  is  done  by  contractors;  and  it  is  held  that 
the  contractors  are  not  liable  when  they  do  the  work  prop- 
erly and  in  accordance  with  the  plans  and  specifications. 
In  the  particular  case  the  injury  consisted  in  so  grading  a 
street  as  to  change  the  flow  of  the  surface  water.  This 
decision  is  questioned. ^^  The  proprietor  has  been  held 
liable  for  injuries  due  to  the  obstruction  of  a  street,  which 
was  a  direct  and  necessary  incident  of  the  work.°° 

A  complaint  against  an  employer  is  demurrable  if  the 
allegations  show  that  the  injury  complained  of  was  caused 
by  the  negligent  manner  in  which  the  contractor  executed 
the  work  in  question,  unless  some  allegation  also  shows  a 
misfeasance  or  malfeasance  on  the  employer's  part  which 
caused  the  contractor  to  do  the  work  negligently,  and  that 


Amer.  Dec.  753;  Palmer  v.  Lin- 
coln (1876),  5  Nebr.  137;  25 
Amer.  Rep.  470;  Buffalo  v.  Hol- 
LOvvAY  (1852),  7  N.  Y.  493;  57 
Amer.  Dec.  530 ;  Lockwood  v.  New 
York  (1858),  2  Hilt.  (N.  Y.),  66; 
Storrs  v.  Utica  (1858),  17  N.  Y. 
104;  72  Amer.  Dec.  437;  Clark 
V.  Fry  (1858),  8  Ohio  St.  379; 
72  Amer.  Dec.  590.  Here  as 
elsewhere  the  employer  will  be 
liable  for  injuries  which  proceed 
from  the  nature  of  the  work  it- 
self, and  not  from  the  manner  in 
which  the  contractor  e-xecuted  it ; 
Ray  V.  Poplar  Bluff  (1897),  70 
Mo.  App.  252,  failure  of  the  con- 
tractor to  guard  an  opening  in 
a  bridge ;  Penny  v.  Wimbledon, 
etc..  Council  (1899),  2  Q.  B.  72; 
7  Am.  Neg.  R.  158,  n.,  failure  to 
safeguard  street  excavation. 
"Pearson   v.    Zable    (1879),   78 


Ky.  170.  In  5  Thomps.  Neg.,  289, 
it  is  said:  "Clearly  they  are  jonit 
tort-feasors."  Where  a  bridge 
built  for  a  city  by  a  contractor 
fell,  causing  damage  and  a  jury 
found  that  it  fell  in  consequence 
of  "defect  and  inartificiality  in 
the  plan"  of  it,  "as  furnished  by 
the  city  engineer,"  the  city  was 
held     liable.       Dayton     v.     Pease 

( ),  8  Ohio  St.  80. 

^''  Johnston  v.  Phoenix,  etc.,  Co. 
(1901),  169  N.  Y.  581;  62  N.  E. 
1096.  To  render  an  employer 
liable  for  injuries  to  a  third  per- 
son during  the  performance  of  a 
contract  by  an  independent  con- 
tractor, the  injury  must  have 
arisen  not  from  the  work  being 
done,  but  from  the  method  adopt- 
ed in  doing  it;  Sullivan  v.  Durham 
(1898\  35  App,  Oiv.  CN.  Y.), 
342;  54  N.  Y.  Supp.  962. 


employer's  exceptional  liability.  147 

the  origin  of  the  injury  complained  of,  therefore,  be  traced 
to  the  action  of  the  former  in  setting  in  motion  the  imme- 
diately efficient  cause  of  the  wrong.^^ 

Sec.  71.     Same,  Result  Unforeseen. 

The  liability  of  the  employer  set  out  in  the  last  preceding 
section  is  predicated  upon  the  principle  that  one  is  liable 
for  the  proximate,  natural  and  probable  consequences  of 
his  own  act.  Hence,  if  there  was  no  primary  culpability 
in  a  given  instance  and  the  injury  complained  of  resulted 
as  a  remote,  unforseen  consequence,  under  the  general 
principles  of  ordinary  care,  then  the  employer  is  not  an- 
swerable ;  and  likewise,  if  the  independent  contractor  or  his 
servant  is  not  guilty  of  negligence  in  the  premises,  the  con- 
tractor is  not  liable.  Thus,  where  a  person  employs  a  com- 
petent architect  and  contractor  and  the  plans  are  sufficient 
and  approved  by  the  building  department  of  the  munici- 
pality, the  owner  is  not  liable  for  an  accident  which  happens 
by  reason  of  the  foreman  of  the  contractor  putting  the 
foundation  of  a  column  on  disturbed  earth. ^-  It  has  been 
held  that  where  the  injury  was  caused  by  "the  manner  in 
which  the  contractor  managed  the  details  of  the  work," 
the  employer  is  not  liable ;  ^^  nor  is  he  liable  for  "a  wrong- 
ful act  unnecessarily  done"  by  the  contractor  in  the  per- 
formance of  his  work ;  ^*  nor  for  an  act  which  did  "not 
necessarily  arise"  out  of  the  work  contracted  for.^^  The 
employer,  it  was  held  in  an  early  leading  English  case,  is 

"White  V.   New  York    (1897),  Railroad  Co.  (1809),  58  N.  Y.  Supp. 

15    App.    Div.    (N.    Y.),    440;    44  286.     To   the    same   effect.    Shiite 

N.  Y.  Supp.  454.   Cf..  Boardinan  v.  v.  Princeton  (1894).  58  Minn.  237; 

Creighton   (1901),  95  Me.  154;  49  59    N.    W.    1050. 

Atl.  663.  "Upton  V.  Townsend  (1855).  17 

''Burke  V.  Ireland    (1901),  166  C.  B.  30.  71. 

N.  Y.  305;  59  N.  E.  914.  "^  Chicago,  etc..  Railroad  v.  Hen- 

""Hauscr  v.  Metropolitan  Street  nessey    (1884),   16  Ills.  App.   153. 


148       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

not  liable  where  a  contractor  for  the  work  of  diverting  a 
creek  erected  an  embankment  so  defectively  that  it  could 
not  resist  the  action  of  the  water  w^hich  it  was  intended  to 
confine.  ^*^ 

Sec.  72.     Work  Dangerous  per  se;  General  Rule. 

"The  general  rule  is,  that  an  employer  is  not  liable  for 
an  injury  caused  by  the  negligence  or  wrongful  act  of  an 
independent  contractor  in  executing  the  work  in  compliance 
with  his  contract ;  but  this  rule  does  not  apply  when  the 
contract  requires  the  performance  of  w^ork  intrinsically 
dangerous."  •'^'  Where  the  contract  calls  for  the  per- 
formance of  w^ork  intrinsically  dangerous,  although  in  such 
cases  the  thing  to  be  done  may  be  lawful,  it  is  none  the 
less  opposed  to  the  spirit  and  policy  of  the  law  to  permit  the 
person  wdio  has  assumed  the  imposed  duty  to  escape  liability 
by  shifting  it  to  a  contractor."^  In  several  English  cases 
it  is  held  that  if,  according  to  previous  knowledge  and  ex- 
perience, the  work  which  the  proprietor  engages  the  con- 
tractor to  do  is  inherently  dangerous  to  third  persons,  and' 
likely  to  lead  to  mischief,  however  carefully  performed,  it 
will  be  incumbent  upon  him  to  foresee  such  mischief  and 


°°  Allen  v.  Hayward  (1845),  7 
Q.  B.  960;  4  Eng.  Ry.  &  C.  Cas. 
104.  Where  a  floor  fell  in  conse- 
quence of  its  being  overloaded, 
the  owner  of  the  premises  was 
held  not  liable;  Dillon  v.  Sixth 
Avenue  Railroad  (1884),  97  N.  Y. 
627.  See,  also,  Hale  v.  Johnson 
(1875),  80  Ills.  185;  14  Am.  Neg. 
Cas.  417,  n.,  wall  fell. 

"Anderson  v.  Fleming  (1903), 
160  Ind.  597;  67  N.  E.  443;  66 
L.  R.  A.  119;  16  Am.  Neg.  R.  606, 


citing    numerous    authorities,    in- 
cluding     GODDAED     V.      HaRPSWELL 

(1892),  83  Me.  499;  24  Atl.  956; 
30  Amer.  St.  411.  An  exception 
to  the  rule  of  non-liability  for  the 
acts  of  an  independent  contractor 
exists  where  the  work  is  neces- 
sarily dangerous,  unless  certain 
precautions  are  taken;  Montgom- 
ery St.  R.  V.  Smith  (1905),  146 
Ala.  316;  39  So.  75;  42  Am.  & 
Eng.  R.  Cas.  (N.  S.).  131. 
^Barrows  Neg.,  p.  165. 


employer's  exceptional  llvbility. 


149 


to  take  precautions  against  it.""  Where  the  law,  statutory 
or  common,  imposes  a  special  duty  upon  the  owner  of 
highly  dangerous  things  to  see  that  they  are  properly  used, 
the  employer  is  liable,   if  such  precautions  are  not  taken, 


"•  Daniel    v.    Metropolitan    Rail- 
road   Co.    (1871),    L.    R.:    5    H. 
L.    63,    per    Colonsay,    J. ;    Bower 
V.  Peate   (1876),  1  Q.  B.  D.  321; 
11    Am.    Neg.    Rep.    645;    Pickard 
V.  Smith  (1861),  10  C.  B.  (N.  S.), 
470;  7  Am.  Neg.  R.  158,  n. ;  8  Id. 
264,  n. ;  Cf.,  Pearson  v.  Cox  (1877), 
2  C.   P.   Div.  369.     See,  also,  the 
following  American  cases  :     Nor- 
walk  Gas  Co.  v.  Norwalk  (1892), 
63   Conn.  495;   28   Atl.    32;    Col- 
grove  V.   Smith    (1894),   102  Cal. 
220;    33    Pac.    115;    27   L.   R.    A. 
590;  Chicago,  etc.,  Co.  v.  Meyers 
(1897),    168   Ills.    139;    48    N.    E. 
66;      Jefferson      v.       Chapm.\n 
(1889),    127    Ills.    438;    20   N.    E. 
33;   11  Amer.  St.  Rep.  139;  Fitz- 
patrick  v.   Chicago,  etc..  Railroad 
(1888),  31   Ills.  App.  649.     If  the 
work  to  be  executed  is  extra-haz- 
ardous, and  such  that  in  the  nat- 
ural   course    of    things    injurious 
consequences   are  likely  to  ensue, 
unless  suitable  means  are  adopted 
to  prevent  such  consequences,  the 
employer  is  liable  unless  he  uses 
due  care  in  the  adoption  of  such 
means;     Huff.     Agcy.,     2d.     ed.. 
sec.  224;  Bower  v.  Peate   (1876). 
L.  R.   1   Q.   B.   D.   321;   45   L.  J. 
Q.  B.  446 ;  Black  v.  Christ  Church 
Finance  Co.    (1894).  A.   C.  48;   7 
Am.  Neg.  R.  158,  n. ;  Thompson 
V.  Lowell,  ETC..  R.\ilro.\d   (1898), 
170  Mass.  577;  49  N.  E.  3S6;  40 
L.  R.  a.  345;  64  Amer.   St.  Rep. 


323;  Cameron  v.  Oberlin   (1897), 
19  Ind.  App.   142;  48  N.  E.  386; 
Norwalk     Gas     Co.     v.     Norwalk 
(1893).  63  Conn.  495;  28  Atl.  321; 
BoN.\PARTE   v.    Wiseman    (1899), 
89  Md.  12;  42  Atl.  918;  44  L.  R. 
A.    482;    Burd.    Cas.    Torts,    404; 
Covington,    etc..    Bridge    Co.    v. 
Steinbrock    (1899),  61    Ohio   St. 
215;   55   N.   E.  618;   7  Am.   Neg. 
R.    154;    76  Amer.    St.   Rep.   575; 
Wetherbee  v.    Partridge    (1899), 
175  Mass.  185;  55  N.  E.  894;  78 
Amer.    St.    Rep.    486.      See,    also. 
Hale   Torts,    136;    Brown   v.    Mc- 
Leish  (1887),  71  Iowa  381;  32  N. 
W.  385.     "It  has  never  been  sup- 
posed   that    cutting    down    one's 
own    trees    in    a    forest    was    so 
intrinsically    and    essentially    dan- 
gerous as  to  impose  on  the  owner 
of  the  land  or  the  trees  the  abso- 
lute duty  of  looking  out  for  per- 
sons who  might  be  passing  along 
a  private  footpath."  Young  v.  Fos- 
hurg,  etc.,  Co.   (1908,  N.  C),  60 
S.    E.   654.     "With   the   exception 
of  the   Young  case,   Knowlton   v. 
Hoit    (1891),  67   N.    H.    155;   30 
Atl.  346.  set  out  in  that  case,  is 
apparently  the  only  case  wherein 
this  question  is  discussed ;  Ander- 
son v.  Tug  River,  etc.,  Co.  (1906), 
59    W.    Va.    301;    53    S.    E.    713, 
may,    however,    be    referred    to.'' 
Note  to  Young  case,  16  L.  R.  A. 
(N.  S.).  255. 


150       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

no  matter  how  careful  or  skillful  the  independent  contractor 
may  be.*^^  The  proprietor  is  liable,  on  the  principle  of 
being-  answerable  for  his  own  negligence,  where  the  injury 
proceeds  from  the  nature  of  the  work  itself,  and  not  from 
the  manner  in  which  the  independent  contractor  has 
executed  it.  If  from  any  reason  the  nature  of  the  work 
is  such  that,  when  done  in  the  ordinary  mode,  it  is  neces- 
sarily or  naturally  injurious,  in  a  legal  sense,  to  a  third 
person,  the  proprietor  must  answer  to  him  in  damages 
for  it.*^^ 


**  Salisbury  v.  Erie  Railway 
(1901),  66  N.  J.  L.  233;  50  Atl 
117;  88  Amer.  St.  Rep.  480;  55 
L.  R.  A.  578. 

"Williams  v.  Fresno,  etc.,  Co. 
(1892),  96  Cal.  14;  31  Amer.  St. 
Rep.  172;  30  Pac.  961;  Carlson  v. 
Stocking  (1895),  91  Wise.  432;  65 
N.  W.  58.  The  proprietor  will 
not  be  absolved  from  liability  for 
the  negligence  of  an  independent 
contractor  where  the  work  is,  in 
itself,  dangerous  and  likely  to 
lead  to  mischief;  Toledo,  etc.,  Co. 
V.  Bosch  (1900),  101  Fed.  530; 
Sullivan  v.  Durham  (1898),  54 
N.  Y.  Supp.  962,  blasting;  Penny 
V.  Wimbledon,  etc.,  Council 
(1898),  2  Q.  B.  72;  7  Am.  Neg. 
R.  158,  n.  Where  the  work  con- 
tracted for  is  intrinsically  danger- 
ous, the  employer  is  held  liable; 
Joliet  v.  Harwood  (1877),  86111s. 
110;  29  Amer.  Rep.  17;  Madigan 
V.  Wellington,  etc.,  Railroad 
(1883),  N.  Zeal.  L.  R.  2  S.  C. 
209;  Bossence  v.  Kilmore  (1883), 
9  Vict.  L.  R.  35,  "dangerous  in 
itself;"  Angus  v.  Dalton  (1878), 
L.   R.   4   O.    B.   D.    162,    187.     If 


the  act  contracted  to  be  done  was 
intrinsically  dangerous,  a  city  will 
be  liable;  Joliet  v.  Seward  (1877), 
86  Ills.  402,  blasting  rocks ;  Marsh 
V.  Philadelphia  (1894),  8  Pa.  Dist. 
Rep.  340,  excavating  for  a  subway 
in  a  street  and  proceeding  with 
the  work  so  carelessly  that  a 
house  abutting  on  the  street  falls 
into  the  excavation  and  is  de- 
stroyed. In  an  action  for  damages 
for  personal  injuries  resulting 
from  an  independent  contractor's 
blasting,  it  was  held  that  the 
plaintiff  must  show,  inter  alia, 
that  the  contractor  was  employed 
in  a  work  which  necessarily  re- 
quired blasting  with  explosives 
in  the  heart  of  the  city,  that  no 
provision  was  made  in  the  con- 
tract for  observing  proper  pre- 
cautions, and  that  the  independent 
contractor  did  the  work  without 
taking  proper  precautions,  so  neg- 
ligently that  the  plaintiff  as  a 
result  was  injured;  Huntt  v.  Mc- 
Namee  (1900),  72  C.  C.  A.  441; 
141  Fed.  293.  "It  can  not  be 
successfully  maintained  that 
building  a  house  on  a  lot  abutting 


employer's  exceptional  llvbility. 


151 


"It  is  sufficiently  manifest  that  the  virtual  abrogation 
now  under  discussion  (/.  e.,  employers'  non-liability  for 
an  independent  contractor's  torts)  would  result  if  the  law 
were  to  predicate,  in  respect  to  all  kinds  of  work  indiffer- 
ently, the  existence  of  an  absolute  duty  on  the  employer's 
part  to  guard  against  accidents,  probable  as  well  as  im- 
probable, that  may  happen  to  the  damage  of  third  persons 
while  that  work  is  being  performed  by  an  independent 
contractor."  ^2  "if^  therefore,  recovery  is  sought  on  the 
ground  that  the  employer  ought  to  have  adopted  certain 
precautionary  measures  for  the  purpose  of  preventing  the 
injury  complained  of,  the  action  will  fail,  unless  the  plain- 
tiff can  at  least  show  that,  in  view  of  the  nature  of  the  work 
and  the  conditions  under  which  it  was  to  be  executed,  the 
defendant  should  have  foreseen  that  the  actual  catastrophe 
which  occurred  was  likely  to  happen  if  those  precautionary 
measures  were  omitted.  Whether  the  production  of  evi- 
dence to  this  effect  will  entitle  him  to  go  to  the  jury  upon 
the  question  whether  the  employer  ought  to  have  provided 
for  the  protection  of  the  public"  is  a  point  which  has  "elicited 
different  opinions.  .  .  .  But  it  seems  to  be  a  reason- 
able inference  from  the  more  recent  decisions  *  *  * 
that  this  point  should.be  decided   in  plaintiff's   favor."  ^^ 


upon  a  street  is  inherently  and 
necessarily  dangerous,  or  that 
danger  and  hazard  must  necessa- 
rily attend  its  erection.  It  is  a 
lawful  work  and  of  necessity  en- 
gaged in  by  thousands  every  day, 
and  if  carefully  and  properly  done, 
involves  no  danger  to  any  one." 
Richmond  v.  Sitterding  (1903), 
101  Va.  354:  43  S.  E.  562;  99  Am. 
St.  Rep.  879;  16  Am.  Neg.  R. 
609,  n.;  65  L.  R.  A.  445,  citing 
cases. 


'■  Note  to  S.xLLiOTTE  V.  King, 
ETC.,  Co.  (1903),  58  C.  C.  A.  466; 
122  Fed.  378,  in  65  L.  R.  A.  at 
p.  639,  citing  City,  etc.,  R.\ilro.\d 
V.  MooREs  (1894),  80  Md.  348;  30 
Atl.  643;  45  Amer.  St.  Rep.  345. 

*^Note     to      S.VLLIOTTE     V.     KlXG, 

ETC.,  supra,  citing  Pearson  v.  Cox 
(1877),  L.  R.  2  C.  P.  Div.  369; 
Jacobs  v.  Fuller,  etc.,  Co.  (1902), 
67  Ohio  St.  70;  65  L.  R.  A.  833; 
13  Am.  Neg.  R.  208;  16  Id.  611,  n. 


152       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Judge  Thompson  says  on  this  point :  ^'*  "If  we  pause  to 
consider  the  effect  of  the  decisions  which  affirm  the  liability 
of  the  proprietor  (for  the  violation  of  a  statutory  duty), 
we  shall  see  that  they  go  far  toward  bringing  us  back  to 
the  doctrine  of  Bush  v.  Steinman.^'^  There  is  no  solid 
distinction  between  one's  obligation  to  perform  a  duty  im- 
posed on  him  by  statute  and  a  duty  imposed  by  common  law. 
To  obstruct  the  street  in  front  of  my  premises  is  a  nuisance 
at  common  law,  and  the  wrongfulness  of  the  act  is  not 
augmented  because  it  is  prohibited  by  statute;  such  a 
statute  is  merely  declaratory  of  the  common  law.  If  this 
act  is  committed  by  a  contractor  doing  a  job  of  work  for 
me,  it  is  difficult  to  see  upon  what  grounds  I  should  be  held 
liable  where  the  act  is  prohibited  by  statute,  as  in  Gray  v. 
PuLLEN,®"  and  not  liable  where  the  act  is  merely  a  nuisance 
at  common  law,  as  in  many  cases  which  overrule  Bush  v. 
Steinman.^'"  In  a  very  able  judgment  *^^  Lord  Cockburn 
appealed  to  Gray  v.  Pullen  for  the  doctrine  that  where 
one  causes  an  act  from  which  danger  may  arise  to  others, 
he  must  see  to  it  that  others  are  not  thereby  injured,  and 
that  he  can  not  divest  himself  of  this  liability  by  trans- 
ferring it  to  an  independent  contractor,  and  that  eminent 
judge  declared  that  Tt  can  make  no  difference  in  point  of 
principle  whether  the  obligation  Vi^as  imposed  by  statute 
or  existed  at  common  law.'  " 


**  Thomps.  Neg.,  Sec.  658,  p.  609. 

■^  (1799),  1   Bos.  &  Pull.  404. 

^^(1864),  5  Best  &  S.  970;  7 
Am.  Neg.  F.  158,  n. 

"''  Supra,  n.  65. 

•«  Bower  v.  Peake  (1876),  1  Q. 
B.  D.  321,  328;  11  Am.  Neg.  R.  645. 
On  facts  similar  to  Gray  v.  Pullen, 
supra,  but  where  there  was  no 
duty  imposed  by  statute,  a  differ- 


ent result  was  reached ;  Sadler 
V.  Henlock  (1855),  4  El.  &  Bl. 
570,  commenting  on  which,  Judge 
Thompson  says  (Neg.  sec.  667, 
note  93)  :  "But  it  is  difficult  to 
distinguish  between  a  liability  im- 
posed by  statute  and  one  subsist- 
ing at  common  law,  particularly 
as  the  statute  is  only  declaratory 
of  the  common  law." 


employer's  exceptional  liability. 


153 


As  to  what  work  is  intrinsically  dangerous,  this  is  a  ques- 
tion which  has  proved  troublesome  even  for  the  courts 
which  recognize  and  enforce  the  distinction  taken  between 
collateral  and  direct  negligence.^'*  This  exception  of  liability 
for  extra  hazardous  work  has  not  met  with  universal  favor. 
It  has  been  applied  to  numerous  cases  of  excavating  lands  and 
endangering  the  support  of  adjoining  property,  to  an  exhibi- 
tion of  markmanship,  to  the  clearing  of  land  by  fire,  to  the  re- 
moval of  dangerous  walls,  and  to  blasting.  On  the  other 
hand,  some  courts  refuse  to  consider  dynamite  blasting, 
excavating,  trench  digging,  etc.,  so  dangerous  as  to  be  non- 
assignable unless  the  work  is  unlaw^ful,  or  a  nuisance,  or 
the  duty  is  imposed  by  statutes.'**  When  the  work  to  be 
done  is  itself  lawful  and  is  likely  to  be  attended  with  in- 
jurious consequences,  it  is  manifestly  difficult  to  draw  a 
clear  line  of  distinction,  or  formulate  a  general  rule  de- 
termining just  what  degree  of  danger  is  necessary  to  place 
the  responsibility  on  the  employer.  It  would  seem,  however, 
that  if  the  contemplated  work  is  of  such  a  nature  that  in 
the  exercise  of  ordinary  care  it  could  be  done  with  safety, 
although,  in  the  absence  of  such  care,  it  would  be  attended 
with  danger,  and  probable  injury,  to  third  persons,  the 
contractor  alone  would  be  responsible.'^     It  is  immaterial 


*"  See  ante,  sec.  66. 

"•Myer  v.  Hobbs  (1876),  57  Ala. 
175;  29  Amer.  Rep.  719;  Mayor, 
etc.,  V.  McCarty  (1887),  84  Ala. 
469;  4  So.  630;  Scammon  v.  Chi- 
cago (1861),  25  Ills.  424;  79  Amer. 
Dec.  334;  14  Am.  Neg.  Cas. 
418,  n. ;  Kepperly  v.  Ramsdcn 
(1876),  83  Ills.  354;  Tibbetts  v. 
Knox,  etc..  Railroad  (1873),  62 
Me.  437;  Blumb  v.  City  of  Kan- 
sas (1884).  84  Mo.  112;  54  Amer. 
Rep.  87;  Cuff  v.  Newark,  etc.. 
Railroad  (1870),  35  N.  J.  L.  17; 


10  Amer.  Rep.  205;  16  Am.  Neg. 
Cas.  668,  n. ;  Blake  v.  Ferris 
(1851),  5  N.  Y.  48;  55  Amer. 
Dec.  304;  Hackett  v.  Western 
Union  Telegraph  Co.  (1891),  80 
Wise.  187;  49  N.  W.  822;  10  Rail. 
&  C.  L.  J.  390. 

"  Barrows  on  Neg.,  p.  166,  citing 
Engel  v.  Eureka  Club  (1893), 
137  N.  Y.  100;  32  N.  E.  1052;  33 
Amer.  St.  Rep.  695 :  Conners  v. 
Hennessey  (1873).  112  Mass.  96; 
McCafferty  v.  Railroad  Co. 
(1874),  61  N.  Y.   178;   19  Amer. 


154       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

what  time  the  accident  happened,  whether  before,  after  or 
during-  the  work,  if  otherwise  the  employer  is  liable. "^^ 

Sec.  73.     Same,  Blasting. 

It  is  desirable  to  notice  separately  those  cases  which 
relate  to  injuries  caused  by  blasting  operations,  for  the 
reason  that  the  doctrine  that  the  employer  is  exempt  from 
liability  under  such  circumstances  is  not  accepted  by  all  the 
authorities.'-^  One  author  asserts  that  blasting  with  dyna- 
mite is  considered  by  most  courts  so  dangerous  an  under- 
taking as  to  impose  upon  the  landowner  or  employer  the 
non-assignable  duty  of  seeing  that  the  work  is  carefully 
conducted.^^  On  the  other  hand,  it  has  been  declared,  and 
supported  by  an  array  of  decisions,  that  ''by  the  weight  of 
authority  it  seems  that  he  (the  employer)  is  not  liable, 
although  the  work  to  be  done  is  intrinsically  dangerous,  so 
long  as  no  negligence  can  be  imputed  to  him  in  employing 
such  contractor,  and  the  work  itself  be  lawful,  and  will  not 
necessarily  result  in  injury  to  another."  '^' 


15 


Rep.      267;      Butler      v.      Hunter  opinion  in   McCafferty  v.   Spuy- 

(1862),  7  Hurl.  &  N.  826;  8  Am.  ten,  etc.,  R.  Co.,  supra,  was  ex- 

Neg.  R.  301,  n.  pressly  disapproved  in  Wetherbee 

•-Piggott    on    Torts,    96.     CI,  v.    Partridge    (1899),    175    Mass. 

Khron  v.  Brock  (1887),  144  Mass.  185;  53  N.  E.  894;  78  Amer.  St. 

516;  11  N.  E.  748.  486.     Cf.,  also,  Murphy  v.  Lowell 

'^Note    to    S.\LLioTTE    V.    King,       ( ),   124  Mass.   564;   Tiffin  v. 

ETC.  Co.   (1903),  58  C.  C.  A.  466;       McCormack    ( ),  34  Ohio   St. 

122   Fed.   378,  in  65  L.  R.  A.,  at  638;    32   Amer.   Rep.   408;    Water 

p.  644.  Co.    V.    Ware     (1872),    16    Wall. 


74 


Burd.     Torts,    p.     143.     citing  (U.   S.),  566. 

Norwalk    Gaslight    Co.    v.     Bor-  ''Article    on    "Explosives,"    by 

ough  of  Norwalk  (1893),  63  Conn.  Mr.  F.  E.  Jennings  in  19  Cyc.  9. 

495 ;   28   Atl.   32 ;   Joliet   v.    Har-  For  an  exhaustive  discussion  re- 

wooD     (1877),    86    Ills.     110;    29  garding   "Liabiliay    for    injury    to 

Amer.  Rep.  17;  dissenting  opinion  person  or  property   from  concus- 

of  Dwight,  C,  in  McCafferty  v.  sion  caused  by  blasting,"  see  note 

Spuyten   Duyvil,   etc..  Railroad  to    Bessemer,    etc.,   Co.   v.    Doak 

(1874),    61    N.    Y.    178,    185;    19  (1907,   Ala.),   44   So.   627;    12   L. 

Amer.  Rep.  267.     The  prevailing  R.  A.   (N.  S.),  389. 


employer's  exceptional  liability. 


155 


In  Vermont  a  railroad  company  was  held  liable  for  its 
failure  to  remove  rocks  thrown  upon  land  adjoining  the 
right  of  way  as  a  result  of  blasting  operations  conducted 
by  a  contractor.'"  Where  a  city  contracted  in  writing  with 
A.  for  the  erection  of  waterworks,  which  contract  was 
assigned  to  B.,  and  by  him  to  C,  and  C.'s  employees  negli- 
gently caused  the  death  of  X.,  while  such  employees  were 
engaged  in  blasting  in  trenches  in  the  streets  for  water 
pipes,  the  city  was  held  liable,  though  it  had  reserved  no 
control  over  the  work  or  over  C.'s  employees."'  Some 
cases  hold  that  where  a  contract  for  the  erection  of  a  build- 


"  Sabin  v.  Vermont,  etc.,  Rail- 
road (1853),  25  Vt.  363;  but  de- 
fendants did  not  raise  the  point 
of  independent  contractors.  Other 
cases  in  note  65  L.  R.  A.  753. 

"LOGANSPORT     V.     DiCK     (1880), 

70  Ind.  65;  36  Amer.  Rep.  166. 
But  see  Staklter  v.  Huntington 
(1899),  153  Ind.  354;  55  N.  E.  88; 
Schnurr  v.  Board,  etc.,  Hunting- 
ton Co.  (1899),  22  Ind.  App.  188; 
53  N.  E.  425.  If  a  person  con- 
tracts with  a  municipal  corpora- 
tion to  do  a  job  of  blasting  rock, 
or  to  perform  any  other  work 
which  is  inherently  dangerous  to 
others,  he  will  not  be  relieved 
from  liability  to  a  person  injured 
thereby  from  the  fact  that  he  sub- 
let the  contract  to  another  by 
whose  negligence  the  injury  act- 
ually occurred,  for  in  such  case 
the  proprietor  himself  would  be 
liable;  Buddin  v.  Fortunato 
(1890),  10  N.  Y.  Supp.  115.  If 
the  proximity  of  other  persons,  or 
the  situation  nf  their  property  with 
reference  to  the  work,  is  such  that 
blasting  cannot   be   carried   on   at 


all  without  subjecting  such  per- 
sons or  such  property  to  unrea- 
sonable risks,  then  the  doing  of 
it  is  a  nuisance  per  se  or  negli- 
gence per  se,  at  least  in  such 
sense  as  makes  the  proprietor  an 
insurer  against  any  injurious  con- 
sequences which  may  flow  from 
it  and  obliges  him  to  pay  dam- 
ages, if  damages  accrue.  In  such 
case  it  will  be  no  defense  to  him 
whatever  that  he  has  committed 
the  work  of  blasting  to  an  inde- 
pendent contractor ;  in  other 
words,  that  he  has  hired  some 
one  else  to  do  an  act  which  is 
inherently  mischievous  and  dan- 
gerous to  others;  Brennan  v. 
Schreiner  (1892),  8  Abb.  (N.  C. 
N.  Y.),  481;  20  N.  Y.  Supp.  130. 
Most  of  the  New  York  cases  hold 
differently;  see  notes  80  et  scq. 
See  on  the  subject  of  "blasting," 
in  general,  the  leading  case  of 
Klepsch  v.  Don.\ld  (1892),  4 
Wash.  436 ;  30  Pac.  991 ;  31  Amer. 
St.  Rep.  936;  8  Wash.  162;  35 
Pac.  621. 


156       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


ing  contemplates  blasting  in  close  proximity  to  adjoining 
buildings,  the  work  is  intrinsically  dangerous,  and  the 
ordinary  rule  of  independent  contractor  does  not  apply."^^ 
Thus,  blasting  of  necessity  involves  danger  to  all  who  are 
in  the  immediate  vicinity,  and  when  the  owner  of  premises 
within  the  city  employes  a  contractor  to  do  work  thereon, 
which  necessitates  blasting,  he  is  liable  for  injuries  caused 
thereby  to  a  third  person.'^'' 

The  doctrine  of  liability  for  extra  hazardous  work  has, 
as  already  stated,  often  been  rejected  in  the  case  of  a  con- 
tract for  blasting.^"  Where  the  situation  is  such  that  the 
blasting  will  not  be  dangerous  to  persons  in  the  vicinity,  pro- 
vided the  contractor  gives  timely  notice  of  the  explosion  of 
each  blast,  and  if  a  person  is  injured  by  such  an  explosion 
through  the  contractor's  failure  to  give  such  notice,  then 
if  any  liability  arises  it  will  be  that  of  contractor  and  not 
that  of  the  city  or  village ;  since  the  injury  arises  from  the 
manner  of  doing  the  work  and  through  a  failure  of  duty 
on  the  contractor's  part  and  not  that  of  the  municipality.^^ 


"  Wetherbee  v.  Partridge 
(1899),  175  Mass.  185;  55  N.  E. 
894;  78  Amer.  St.  Rep.  4S6;  Bran- 
nock  V.  Elmore  (1892),  114  Mo. 
55;  21  S.  W.  451.  Cf.,  Carmen  v. 
Steubenville,  etc.,  Railroad  (1854), 
4  Ohio  St.  399.  Contra,  in  New 
York;  see  notes  80  et  scq. 

^*  James'  Administrator  v.  Mc- 
MiNiMY  (1892),  93  Ky.  471;  20 
S.  W.  435;  40  Amer.  St.  200;  15 
Am.  Neg.  Cas.  233,  n.  See,  also, 
Georgia  Central  Railroad  v.  Bern- 
stein. 113  Ga.  175;  38  S.  E.  394. 
Compare,  contra,  Holland,  etc., 
Co.  V.  Baird,  169  N.  Y.  136;  62 
N.  E.  149,  reversing  63  N.  Y. 
Supp.  73. 

''Berg  v.   Parsons    (1898),   156 
N.  Y.   109;   50  N.  E.  957;  41  L. 


R.  A.  391 ;  66  Amer.  St.  Rep.  542; 
47  Cent.  L.  J.  237;  4  Am.  Neg. 
R.  432;  Burd.  Cas.  406,  note.  See 
McNamee  v.  Hunt  (1898),  87  Fed. 
Rep.  298;  Carter  v.  Berlin  Mills 
(1876),  58  N.  H.  52;  42  Amer. 
Rep.  572;  Cuff  v.  Newark,  etc.. 
Railroad  (1870),  35  N.  J.  L.  17; 
10  Amer.  Rep.  205;  16  Am.  Neg. 
Cas.  668,  n.  In  Berg  v.  Parsons, 
supra,  three  judges  (Gray,  Bart- 
lett  and  Haight)  dissented  on  the 
ground  that  there  was  evidence 
justifying  the  conclusion  that  the 
employer  was  culpable  in  engaging 
an    incompetent    contractor. 

"  Herrington  v.  Lansingburgh 
(1886),  110  N.  Y.  145;  17  N.  E. 
728;   6  Amer.   St.  Rep.   348. 


employer's  exceptional  llvbility 


157 


If,  however,  the  situation  of  the  premises  on  which  the 
blasting  is  done,  with  reference  to  the  lawful  proximity  of 
third  persons  or  with  reference  to  adjacent  property,  is 
such  that  the  blasting  can  be  carried  on  without  subjecting 
such  persons  or  property  to  unreasonable  risks,  provided 
it  is  properly  done(  i.  e.,  that  explosives  of  excessive  force 
are  not  used,  blasts  are  properly  covered,  proper  warnings 
are  given,  and,  if  necessary,  barriers  are  erected  to  arrest 
flying  missiles)  then  it  becomes  the  duty  of  the  independent 
contractor  to  take  these  precautions,  and  if  damages  ensue 
from  the  neglect  of  them,  he  and  not  the  proprietor  will 
be  liable.*^     If  full  effect  be  given  to  the  principle  of  non- 


^^  French  v.  Vix  (1894),  143  N. 
Y.  90;  37  N.  E.  612,  reversing  30 
Abb.  (N.  C),  158;  21  N.  Y.  Supp. 
1016;  Booth  v.  Rome,  etc.,  Rail- 
RO.\D  (1893),  140  xN.  Y.  267;  35 
N.  E.  24;  24  L.  R.  A.  105;  37 
Amer.  St.  Rep.  552;  Burd.  C 
Torts,  717.  reversing  17  N.  Y. 
Supp.  336;  63  Hun  624.  The 
earlier  New  York  doctrine  was 
different,  as  see  Hay  v.  Cohoes 
Co.  (1849),  2  N.  Y.  159;  51  Amer. 
Dec.  279;  Tremain  v.  Cohoes  Co. 
(1849),  2  N.  Y.  163;  51  Amer. 
Dec.  284.  See,  also,  upholding  the 
present  New  York  rule,  Brannock 
V.  Elmore  (1892),  114  Mo.  56;  21 
S.  W.  451;  Roemer  v.  Striker 
(1893).  21  N.  Y.  Supp.  1090 
(1894).  142  N.  Y.  136;  36  N.  E. 
808.      See,    also,    McCafferty    v. 

SpUYTEN     DuYVIL,     etc.,    RAILR0.\n 

(1874),  61  N.  Y.  178;  19  Amer. 
Rep.  267;  Kelly  v.  New  York 
(1854).  11  N.  Y.  432;  Pack  v. 
New  York  (1853).  8  N.  Y.  222; 
Storrs  v.  Utica  (1858).  17  N.  Y. 
104;     72     Amer.     Dec.     437.      In 


Storrs  v.  Utica,  supra,  Comstock, 
J.,  says :  "The  opinion  [in  Blake 
V.  Ferris  (1851),  5  N.  Y.  48;  55 
Amer.  Dec.  304],  contains  a  very 
elaborate,  and  I  doubt  not,  a  very 
correct  exposition  of  the  doctrine 
of  respondeat  superior,  but  I  feel 
less  sure  that  the  doctrine  was 
applied  with  strict  accuracy  to 
the  facts  in  the  case."  Logans- 
port  V.  Dick  (1880),  70  Ind.  65; 
36  Amer.  Rep.  166,  since  over- 
ruled in  effect;  Tibbetts  v.  Knox, 
etc..  Railroad  (1873),  62  Me.  437 
Hill  V.  Schneider  (1897),  13  N.  Y 
App.  Div.  299;  43  N.  Y.  Supp.  1 
1  Am.  Neg.  R.  141 ;  Wiener  v 
Plallack,  14  N.  Y.  Supp.  365 
Brennan  v.  Gellick.  20  N.  Y.  St. 
1023;  30  Abb.  (N.  C),  166;  see 
especially  Berg  v.  Parsons,  supra. 
It  was  held  in  Roemer  v.  Stryker. 
supra,  that  no  error  had  been 
committed  in  allowing  the  defend- 
ant to  give  in  evidence  a  written 
contract  between  himself  and  an- 
other whereby  the  latter  agreed  to 
make    an    excavation,     in     which 


158       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


liability,  it  is  said  to  be  clear  that  cases  in  which  a  contract 
is  entered  into  for  the  performance  of  work  by  means  of 
blasting  must  stand  outside  the  category  of  those  in  which 
the  employer  is  held  responsible  on  the  ground  that  he  con- 
tracted  for  work   which   was  "intrinsically   dangerous."  ^* 
A  constitutional  provision,  imposing  on  corporations,  exer- 
cising eminent  domain,  a  liability  for  consequential  dam- 
ages caused  by  taking  property,  was  held  not  to  render  a 
railway  corporation  exercising  such  power  liable  for  dam- 
ages caused  by  a  contractor's  negligence  in  blasting  rocks 
so  as  to  throw  them  on  property  adjacent  to  its  right  of 
way.^"^     Recovery  was  denied  in  a  case  where  the  plaintiff 
was  injured  by  a  rock  thrown  out  by  a  blast  set  off  while 
the  foundation  for  a  house  was  being  excavated  by  a  con- 
tractor. ^^^     In  a  recent  California  case,  it  is  stated  that  the 
rule  that  one  employing  an  independent  contractor  is  not 
liable  for  the  latter's  negligence  can  not  be  modified  by  the 
doctrine  that  the  employer  is  liable  if  the  work  is  such  as 
would  necessarily  produce  wrongful  consequences  without 
reference  to  the  negligence  of  the  contractor,  or  is  such  as 


work  blasting  was  done.  In  Hill 
V.  Schneider,  supra,  the  New  York 
supreme  court  held  that  a  prelim- 
inary injunction  will  not  lie  at  a 
tenant's  instance  to  restrain  his 
landlord  from  blasting  in  an  ad- 
joining piece  of  land,  it  appearing 
that  he  personally  has  not  en- 
gaged in  blasting,  but  has  em- 
ployed an  independent  contractor 
to  accomplish  a  certain  result,  not 
wrongful  per  sc,  reserving  to  him- 
self no  control  over  the  manner 
of  doing  the  work;  the  decision 
proceeds  on  the  ground  that  the 
work  was  not  apparently  such  as 
might  injure  plaintiflF  pendente 
lite. 


^  Schnurr  v.  Huntington  Co. 
(1899),  22  Ind.  App  188;  53  N. 
E.  425,  in  which  a  county  board, 
with  the  city's  consent,  let  a  con- 
tract to  construct  a  sewer  from 
the  court  house  to  the  city's 
sewer;  the  city,  the  individual 
members  of  the  board  and  the 
board,  collectively,  were  held  not 
answerable.  See,  also,  Blumb  v. 
City,  etc.  (18S4),  84  Mo.  112;  54 
Amer.  Rep.  87. 

"  Edmundson  v.  Pittsburgh,  etc., 
Railroad  (1885),  111  Pa.  St.  316; 
2  .'\tl.  404.  Cf.,  Ardesco  Oil  Co. 
v.  Gilson    (1870),  63  Pa.   St.  146. 

*'Hunt  v.  Vandcrbilt  (1894), 
115  N.  C.  559;  20  S.  E.  168. 


employer's  excei^ional  liability. 


159 


is  intrinsically  dangerous  and  constitutes  ipso  facto  a 
nuisance,  where  the  injury  is  produced  by  blasting  in  the 
construction  of  a  wagon  road  through  an  uninhabited  and 
substantially  untraveled,  wild,  mountainous  region.***^ 


Sec. 


74.     Same,  Fires. 


There  is  an  irreconcilable  conflict  among  the  cases  in- 
volving the  question  as  to  the  employer's  liability  for  the 
act  of  an  independent  contractor  in  the  use  of  fire,  in  the 
performance  of  his  contract.  Thus,  in  the  opinion  of  some 
courts,  a  contract  to  burn  brush  on  the  defendant's  lands 


""Houghton  v.  Loma,  etc.,  Co. 
(1907),  152  Cal.  500;  93  Pac.  82; 
14  L.  R.  A.  (N.  S.),  913.  "It 
would  seem  to  be  held  generally 
that  blasting  operations  in  them- 
selves are  not  considered  so  in- 
trinsically dangerous  as  to  render 
an  employer  liable  for  the  negli- 
gent act  of  an  independent  con- 
tractor from  the  very  act  of 
employing  him  to  do  the  work 
contracted  for,  or  to  impose  upon 
such  employer  the  absohue  duty 
to  take  special  precautions  to 
avoid  injuries  from  the  opera- 
tions ;  in  other  words,  the  mere 
employing  of  an  independent  con- 
tractor to  perform  work  requiring 
blasting  will  not  ipso  facto  take 
the  case  out  of  the  general  rule, 
and  render  the  employer  liable 
for  injuries  caused  by  the  negli- 
gent acts  of  the  independent  con- 
tractor. Numerous  cases,  indeed, 
do  hold  that  the  employer  is 
lial;le  for  the  acts  of  an  inde- 
pendent contractor  in  blasting 
operations;    but    these    cases    arc 


not  necessarily  opposed  in  prin- 
ciple to  the  rule  set  out  above,  as 
they  are  generally  decided  upon 
the  facts  of  the  particular  case, 
and  those  facts  are  such  as  clearly 
to  render  the  rule  inapplicable  or 
to  form  a  clear  cut  exception." 
Note  to  Houghton  v.  Loma,  etc., 
Co.  (1907,  Cal.),  14  L.  R.  A.  (N. 
S.),  914.  A  railway  construction 
contract  spccilied  that  all  dam- 
ages from  blasting  should  be  paid 
by  the  contractor,  and  in  case  any 
damages  should  occur  to  ar.other 
landowner's  premises  through  the 
wilfullness  or  carelessness  of  the 
contractor,  or  his  employees,  and 
remain  unsettled  thirty  days,  the 
railroad  should  have  the  right  to 
retain  in  its  hands,  out  of  money 
due  the  contractor,  sufficient  to 
pay  such  damages ;  the  railroad 
company  was  held  not  liable  to 
third  persons  for  injuries  caused 
by  the  contractor  in  blasting. 
Tibbetts,  v.  Knox,  etc.,  Railroad 
(1873).  62  Me.  437. 


160       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


calls  for  the  doing  of  intrinsically  dangerous  work.^'^  An 
eminent  authority  declares:  "Upon  the  plainest  considera- 
tions, this  principle  ought  to  be  applied  to  the  case  where 
an  independent  contractor,  acting  within  the  terms  of  his 
contract,  sets  out  a  fire  on  the  premises  of  the  proprietor, 
where  he  is  doing  work  under  contract,  and  the  fire  spreads 
to  the  lands  of  an  adjoining  proprietor,  doing  damage  there; 
for  certainly  it  must  be  conceded  that  a  fire,  unless  guarded, 
is  likely  to  lead  to  mischief.  Accordingly,  it  has  been  held 
that  a  corporation  owning  land  is  liable  in  damages  for  the 
act  of  its  contractor  in  negligently  and  improperly  lighting 
a  fire  on  its  land,  and  permitting  it  to  spread  to  the  land 
of  another  owner,  although  such  contractor  in  so  doing 
disregards  specific  instructions  contained  in  the  contract  in 
regard  to  the  time  at  wdiich  such  fire  should  be  lighted.  To 
escape  liability,  the  corporation  must  show  that  the  act 
of  the  contractor  was  that  of  a  trespasser  and  not  within 
the  scope  of  the  contract."  ^^ 

A  railroad  company  let  a  contract  to  another  to  burn 
a  fire  guard  along  its  right  of  way.  Through  the  contrac- 
tor's negligence  the  fire  escaped  his  control  and  damaged 
the  plaintiff's  property.  Held :  ( 1 )  That  the  work  was 
performed  as  part  of  the  operation  of  the  railroad  and  that 


*' Black  V.  Christ  Church  Fi- 
nance Co.  (1894),  A.  C.  48; 
7  Am.  Neg.  R.  158,  n;  Cameron 
V.  Oberlin  (1897),  19  Ind.  App. 
142;  48  N.  E.  385;  16  Am.  Neg. 
R.  599,  608,  in  which  latter  case 
it  appeared  that  the  negligence 
flowed  directly  from  the  acts 
which  the  contractor  agreed  to  do 
and  was  by  the  landowner  author- 
ized to  do. 

•^  Thomps.  Neg.,  Sec.  656,  citing 
Black  V.  Christ  Church,  etc.,  Co., 
supra.    A  municipal  council  which 


contracted  with  a  person  for  the 
destruction  of  dead  animals  by 
burning  in  the  council's  paddock, 
the  work  being  highly  dangerous 
at  the  time  the  contract  was  made, 
but  susceptible  of  being  safely 
performed  if  certain  precautions 
were  observed,  was  held  respon- 
sible for  injuries  caused  to  plain- 
tiff's property  as  a  result  of  the 
contractor's  failure  to  observe 
these  precautions.  Hannan  v. 
Shcpparton  (1892,  Vict),  14  Aust. 
L.  T.  83. 


EMPLOYER  S   EXCEPTIONAL  LIABILITY. 


161 


the  railroad  company  could  not,  by  delegating  the  work 
to  an  independent  contractor,  avoid  the  liability  placed  on 
it  by  statute;  (2)  That  the  work  being  of  a  character  from 
which,  in  the  natural  course  of  things,  injurious  conse- 
quences to  others  might  be  expected  to  result,  unless  means 
were  adopted  to  prevent  them,  the  railroad  company  was 
bound  to  see  that  measures  were  taken  to  prevent  such 
injury  and  could  not  avoid  the  obligation  by  letting  the 
work  to  an  independent  contractor. ^'-^ 

The  doctrine  of  liability  for  extra  hazardous  work  has 
been  more  often  rejected  in  the  case  of  a  contract  for  the 
setting  of  fires.'-'"  In  St.  Louis,  etc.,  Ry.  v.  Yonly,^^ 
the  court  intimates  that  such  work  might  be  intrinsically 
dangerous  under  some  circumstances;  but  holds  that   the 


*"  St.  Louis,  etc.,  R.  v.  Madden 
(1908),  n  Kans.  80;  93  Pac.  586; 
17  L.  R.  A.  (N.  S.),  788;  50  Am. 
&  Eng.  R.  Cas.  (N.  S.),  48,  sjlla- 
bus  by  court,  citing  inter  alia, 
Gillson  V.  North  Grey  R.  Co. 
(1874),  36  U.  C.  (Q.  B.),  475,  two 
judges  dissenting;  and  distinguish- 
ing Wabash,  etc.,  R.  v.  Farver 
(1S87),  111  Ind.  195;  12  N".  E. 
296;  60  Amer.  Rep.  696;  31  Amer. 
&  Eng.  R.  Cas.  (N.  S.),  134.  In 
a  note  to  the  Madden  case  in  17 
L.  R.  A.  (N.  S.),  788,  citing  nu- 
merous cases,  the  learned  anno- 
tatcr  says,  "the  extra  hazardous 
nature  of  this  undertaking  is 
deemed  to  justify  the  separate 
note." 

""  St.  Louis,  etc.,  Railro.ad  v. 
YoNLY  (1900),  53  Ark.  503;  13 
S.  W.  333;  45  Am.  &  Eng.  R. 
Cas.  51S;  9  L.  R.  A.  604.  See, 
also,  Leavitt  v.  Bangor,  etc.. 
Railroad  (1897),  89  Me.  509;  36 


L.  R.  A.  382;  7  Am.  &  Eng.  R. 
Cas.  354;  1  Am.  Neg.  R.  605. 

"■Supra,  note  90.  In  this  case 
injuries  resulted  to  an  adjoining 
proprietor  from  the  negligent  per- 
formance by  a  third  person  of  his 
contract  to  burn  the  brush  grow- 
ing upon  a  railroad  company's 
right  of  way,  when  such  burning, 
if  carefully  done,  would  have 
caused  no  injury.  Judge  Thomp- 
son says  this  is  "opposed  to  sound 
principle."  Comm.  on  Neg.,  Sec. 
656,  note  37.  That  burning  piles 
of  brush  is  not  considered  in- 
trinsically a  dangerous  work,  see 
Shute  V.  Princeton  Tp.  (1898),  58 
Minn.  337;  59  N.  W.  1050;  Carl- 
son V.  Stocking  (1895).  91  Wise. 
432;  65  N.  W.  58;  Stone  v.  Rail- 
road Corporation  (1849).  19  N. 
H.  427;  57  Amer.  Dec.  192.  But 
see,  Mahoney  v.  Dankwert  (1899), 
108  Iowa,  321 ;  79  N.  W.  134. 


162       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

burden  of  showing  that  it  was  so  dangerous  is  on  the  plain- 
tiff. Unless  the  circumstances  of  the  case  are  such  that 
the  mere  fact  of  authorizing-  the  fire  to  be  set  is  per  se  neg- 
ligence, then  if  it  is  set  by  an  independent  contractor,  the 
fact  that  it  escapes  his  control  through  his  negligence  and 
gets  upon  tlie  lands  of  another  and  there  does  damage,  does 
not  make  the  landowner,  on  whose  land  it  is  set  by  the  in- 
dependent contractor,  liable  for  such  damage,  though  the 
independent  contractor  undertook  the  work  of  clearing  the 
land  at  a  stipulated  sum  per  acre.^"  In  a  case  where  the 
property  owner  employed  a  painter  to  paint  his  house  for 
a  lump  sum,  and  gave  him  no  directions  as  to  the  manner 
of  the  work,  the  painter  was  held  an  independent  contractor 
for  the  result  of  whose  act  in  setting  out  a  fire  by  the  negli- 
gent operation  of  a  paint  burner,  the  proprietor  was  not 
liable.^^  A  town  which  enters  into  a  contract  with  an  indi- 
vidual for  the  repair  of  a  highway,  including  the  destruc- 
tion by  fire  of  brush  which  has  theretofore  been  cut  and 
piled,  is  not  liable  for  damages  caused  by  the  negligence  of 
such  contractor  when  burning  the  brush. '^■^ 

Sec.  75.     Same,  Excavations. 

Digging  trenches   in   highways  or  across   footpaths  has 
been  considered  by  many,  if  not  most,  courts  so  dangerous 


"-Ferguson  v.  Hubbell  (1884), 
97  N.  Y.  507;  49  Amer.  Rep.  544. 
The  proprietor  of  a  grain  eleva- 
tor, in  which  there  is  much  in- 
flammable matter,  is  not,  as  a 
matter  of  law,  guilty  of  negli- 
gence in  failing  to  have  automatic 
sprir.klers  in  the  building.  Cox 
V.  Central,  etc..  Railroad  (1898). 
170  Mass.  129;  49  N.  E.  97;  9 
Am.  &  Eng.  R.  Cas.  (N.  S.),  591. 


'^Francis  v.  Johnson  (1904), 
127  Iowa,  391;  101  N.  W.  878;  17 
Am.  Neg.  R.  507.  A  municipal- 
ity was  held  not  liable  where  a 
fire  spread  from  timber  which 
was  being  burnt  on  a  road  by  an 
independent  contractor.  Carroll 
V.  Plympton  (1860).  9  U.  C.  C. 
P.  345. 

""Shute  V.  Princeton  (1894).  58 
Minn.  337;  59  N.  W.  1050. 


EMPLOYER  S   EXCEPTIONAL  LIABILITY. 


163 


as  not  to  be  assignable  so  far  as  liability  is  concerned.'*"' 
An  incorporated  company  undertaking  to  lower  the  grade 
of  its  road  while  in  the  receipt  of  tolls,  and  while  the  road 
is  open  for  travelers,  is  bound  to  guard  that  part  retained 
for  public  use,  to  warn  travelers  of  danger  threatened  by 
obstructions,  and  by  suitable  devices  to  direct  them  in  the 
proper  route;  of  which  duties  it  may  not  divest  itself  by 
shifting  the  responsibility  to  others. ^^  Excavating  adjoin- 
ing land  has  also  been  held  intrinsically  dangerous  within 
this  rule.'*^  The  contractor  may  be  liable  jointly  with  his 
principal  to  the  adjoining  owaier,  although  the  contractor 
merely  engaged  to  do  the  excavating,  and  did  it,  supposing 
that  his  principal  would  take  measures  to  support  the  ad- 
joining land.^^  On  the  other  hand,  it  has  been  held  that  a 
telegraph  company  is  not  liable  to  one  who  is  injured  by 
falling  into  a  hole  dug  in  a  public  street  by  a  railroad  com- 
pany engaged  as  an  independent  contractor  in  erecting  a 
line  of  poles  and  wire  for  it,  where  the  contract  does  not 


""Spence  v.  Schultz  (1894),  103 
Cal.  208;  37  Pac.  220;  Curtis  v. 
KiLEY  (1891),  153  Mass.  123;  26 
N.  E.  421 ;  Burd.  Cas.  Torts,  403  ; 
McCarkier  v.  Hollister  (1902), 
15  S.  D.  336;  89  N.  W.  862;  91 
Amer.  St.  Rep.  695;  11  Am.  Neg. 
R.  641. 

"Lancaster  Avenue  Improve- 
ment Co.  V.  Rhoads  (1887),  116 
Pa.  St.  377;  9  Atl.  852;  2  Amer. 
St.  Rep.  608.  As  the  work  of 
making  in  the  street  an  excava- 
tion to  receive  one  of  the  columns 
which  are  to  support  an  elevated 
railway  is  intrinsically  dangerous, 
the  company  owning  the  line  can 
not,  by  intrusting  the  work  to  an 
independent  contractor,  escape  its 
obligation  to  see  that  the  pitfall 
thus  created  is  so  guarded  as  to 
prevent   its  being  a  cause   of  in- 


jury to  passersby;  for,  since  this 
obUgation  is  imperative  so  long 
as  the  excavation  exists,  notice 
that  it  is  not  sufficiently  protected 
is  not  a  condition  of  legal  re- 
sponsibility for  injuries  resulting 
from  it.  Flynn  v.  New  York  Ele- 
vated Railroad  (1883),  17  Jones 
&  S.  60,  in  which  case  the  wheels 
of  plaintiff's  truck  slipped  into 
the  hole  in  question.  Contra,  as 
to  dock  commissioners'  liability 
for  railroad  company  under  some- 
what similar  circumstances.  Bar- 
ham  V.  Ipswich  Dock  (1885),  54 
L.  T.  (N.  S.),  23. 

"  Bonaparte  v.  Wiseman 
(1899),  89  Md.  12;  42  Atl.  918; 
44  L.  R.  A.  482;  Burd.  Cas.  404. 

•■^  Green  v.  Berge  (1894),  105 
Cal.  52;  38  Pac.  539;  45  Amer. 
St.  Rep.  25. 


164       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


require  such  holes  either  to  be  dug  in  the  street  or  to  be  left 
unguarded,  but  leaves  the  manner  of  erecting  the  line  en- 
tirely to    the  railroad  company."^ 

Sec.  76.     Same,  Explosives. 

A  natural  gas  company  employed  a  contractor  in  a  city 
street,  and  through  his  negligence  an  explosion  occurred. 
The  gas  company  was  held  not  liable  unless  it  had  accepted 
the  work  from  the  contractor  prior  to  the  explosion,  or 
knew  the  work  was  so  done  as  to  be  dangerous.  ^'^^  In  an 
Illinois  case,  a  gas  company  contracted  for  the  doing  of 
certain  work  which  required  the  forcing  of  explosive  gas 
through  pipes  not  yet  thoroughly  cemented;  the  gas  leaked 
and  caused  an  explosion;  the  gas  company  was  held  liable 
for  the  resulting  damages,  notwithstanding  the  fact  that  the 
work  was  done  by  a  construction  company  which  was  an 
independent  contractor.  In  this  case,  all  the  officers  and 
employees  of  the  construction  company  were  connected  with 
the  gas  company.  ^°^  It  has  very  recently  been  held  that  an 
employer  is  liable  for  injuries  due  to  an  independent  con- 


"*  Hackett  v.  Western  Union 
Telegraph  Co.  (1891),  80  Wise. 
187;  49  N.  W.  822;  10  Rail.  & 
Corp.  L.  J.,  390.  A  Georgia 
ruling  to  the  effect  that  a  street 
railway  company  authorized  to 
lay  its  track  in  a  street  is  not 
liable  for  injuries  occasioned  by 
the  negligence  of  a  servant  of  an 
independent  contractor  whom  it 
has  engaged  to  do  the  work, 
where  it  had  reserved  no  control 
over  his  conduct,  but  that  the  lia- 
bility is  upon  the  contractor,  is 
questioned  by  eminent  authority, 
"since  in  such  a  case  the  work  is 
inherently  dangerous  and  likely  to 
lead  to  mischief,  unless  properly 
guarded,    which    brings    the    case 


within  the  operation  of  another 
principle ;  and,  moreover,  it  is  a 
just  conclusion  that  the  grant  of 
a  franchise  to  tear  up  the  public 
street  of  a  city  is  made  upon 
the  implied  condition  that  the 
grantee  will  see  to  it  that  the 
public  are  guarded  from  unneces- 
sary danger  during  its  operation." 
Fulton  County  Street  Railroad  v. 
McConnell  (1891),  87  Ga.  756;  13 
S.  E.  828;  Thomps.  Neg.,  Sees. 
652,  671. 

^"^  Chartiers,  etc.,  Co.  v.  Lynch 
(1888),  118  Pa.  St.  362;  12  Atl. 
435. 

"^  Chicago,  etc.,  Gas  Co.  v. 
Myers  (1897),  168  Ills.  139;  48 
N.  E.  66.    But  see,  Chartiers,  etc.. 


EMPLOYER  S  EXCEPTIONAL   LIABILITY. 


165 


tractor's  act  in  breaking  up  heavy  machinery  by  dynamite 
in  a  large  city  within  150  feet  of  highways  and  residences, 
as  the  rule  absolving  employers  from  liabih'ty  for  inde- 
pendent contractors'  neghgence  does  not  prevail  where  the 
work  contemplated  was  hazardous  and  was  to  be  performed 
within  dangerous  proximity  to  persons  rightfully  on  the 
streets  or  in  the  residences  near  by.^^^  The  owner  and  not 
the  maker  of  a  boiler  was  held  liable  for  its  explosion  by 
reason  of  insufficient  repairs  where  the  repairs  were  made 
under  the  supervision  of  the  owner.^*^^  A  street  railroad, 
which  had  provided  a  suitable  place  for  an  exhibition  of 
fireworks,  which  was  in  charge  of  a  competent  independent 
contractor,  was  not  liable,  where  a  piece  of  fireworks  fail- 
ing to  explode,  the  father  of  the  man  in  charge,  who  was 
assisting  as  a  volunteer,  gave  it  to  the  injured  boy  and  told 
him  to  take  it  away  and  have  a  good  time  with  it.^^^ 


Sec.  77.    Same,  Balloon  Ascensions. 

A  street  railway  company,  advertising  a  balloon  ascen- 
sion at  a  park  owned  and  controlled  by  it,  was  held  liable 
for  the  death  of  a  child  at  such  ascension  caused  by  the  fall 
of  a  pole  to  which  the  balloon  was  attached,  where  proper 
notice  of  the  fact  that  it  would  fall  was  not  given,  even 
though  the  person  making  the  ascension  w'as  employed  as 
an    independent   contractor. ^^^     This   doctrine   of   liability 


Co.  V.  Lynch,  supra.  Where  a 
telegraph  company  laying  wires  in 
a  highway  employed  a  plumber  to 
solder  the  joints  of  tubes,  and 
through  the  use  of  a  defective 
benzine  lamp  an  explosion  re- 
sulted, injuring  a  passerby,  the 
telegraph  company  was  held  liable. 
Holliday  v.  National  Telegraph 
Co.  (1899),  2  Q.  B.  392. 

"-Falendcr  v.  Blackwell  (1905), 
39  Ind.  App.  121;   79  N.  E.  393. 


On  the  general  subject  of  blast- 
ing, see  ante.  Sec.  73. 

""James  McNeil,  etc.,  Co.  v. 
Crucible,  etc.,  Co.  (1904),  207  Pa. 
St.  493;  56  Atl.  1067. 

'"  Noggle  V.  Carlisle,  etc.,  R. 
(1906),  215  Penn.  357;  64  Atl. 
547;  44  Amer.  &  Eng.  R.  Cas.  (N. 
S.),  627. 

""Richmond,  etc.,  R.mlroad  v. 
Moore  (1897),  94  Va.  493;  27  S. 
E.  70;  37  L.  R.  A.  258. 


166       INDEPENDENT    CONTRACTORS     AND    THEIR    LIABILITY. 

for  extra  hazardous  work  has  also  been  rejected  in  the  case 
of  a  contract  for  an  exhibition  of  balloon  ascension/"*^ 

Sec.  78.     Same,  Logging. 

A  lumberman,  contractins:^  for  logs  to  be  delivered  at 
the  mouth  of  a  stream,  is  not  liable  for  the  destruction  of 
a  bridge  by  reason  of  the  contractor  allowing  the  logs  to 
jam  in  the  stream  wath  those  of  owners,  the  accident  oc- 
curring by  reason  of  a  freshet  breaking  the  jam.^'^'^  Where 
a  person  employed  to  haul  logs  left  some  of  them  on  a  high- 
way, thereby  creating  a  dangerous  obstruction  which  caused 
injuries  to  the  plaintiff,  the  employer  was  held  not  liable.^*'* 
Where  a  boom  of  logs  which  was  to  have  been  towed  across 
an  inlet  of  the  sea,  which  was  insecurely  fastened,  and 
being  set  adrift  by  a  storm  was  driven  against  the 
piles  supporting  a  house,  the  employer  was  declared  not 
responsible.  ^'^'^ 

Sec.  79.     Same,  Overhanging  Objects. 

Where  a  property  owner  lets  to  a  contractor  the  work 
of  constructing  or  repairing  an  awning  over  a  sidewalk  in 
front  of  his  store,  the  case  "comes  under  the  exception  to 
the  general  rule ;  that  is,  that  the  work  contracted  for  in- 
volves a  thing  inherently  dangerous  to  the  public,  from 
which  injuries  to  those  using  the  streets  were  probable  and 
might  reasonably  be  anticipated  by  the  proprietor.  This 
is  a  well-established  exception,  and  has  been  frequently 
applied  to  cases  of  this  character."  ^^° 

'"«  Smith  v.  Renick   (1898),  87  ^'*  Easter    v.    Hall     (1901),    12 

Md.  610;  41  Atl.  56;  42  L.  R.  A.  Wash.  160;  40  Pac.  728. 

277.  ""  McH  ARGE    V.     Newcomer 

^"'Overseer,     etc.,    v.     Pelton  (1907),  117  Tenn.  595 ;  100  S.  W. 

(1901),  129  Mich.  31;  87  N.  W.  700;    9   L.    R.   A.    (N.    S.),   298, 

1029.  302,  citing  Jefferson  v.  Chapman 

"*  Manchester  V.  Warren  (1893),  (1889),    127    Ills.    438;    20    N.    E. 

67  N.  H.  482;  32  Atl.  763.  33;  11  Amer.  St.  Rep.  139;  Wood- 


EMPLOYER  S   EXCEFl'lONAL   LIABILITY. 


167 


On  the  other  hand,  an  abutting-  owner  was  liekl  not  hable 
for  a  sign  falhng  down  during  a  violent  storm,  from  his 
building  onto  one  using  the  adjacent  sidewalk,  where  the  sign 
was  placed  by  an  independent  contractor  about  two  weeks 
before.  ^^^ 


MAN  V.  Metropolitan  Railroad 
Co.  (1889),  149  Mass.  335;  21  N. 
E.  482;  6  Rail.  &  Corp.  L.  J., 
72;  4  L.  R.  A.  213;  14  Amer.  St. 
Rep.  427;  12  Am.  Neg.  Cas.  80; 
Omaha  v.  Jensen  (1892),  35 
Nebr.  68 ;  52  N.  W.  833 ;  37  Amer. 
St.  Rep.  432;  Engel  v.  Eureka 
Club  (1893),  137  N.  Y.  100;  32 
N.  E.  1052;  33  Amer.  St.  Rep. 
695;  Cameron,  etc.,  Co.  v.  Ander- 
son (1904),  98  Tex.  156;  81  S 
W.  282;  1  L.  R.  A.  (N.  S.),  198 
16  Am.  Neg.  Reg.  599,  608 
Southern  Ohio  Railroad  v 
Morey  (1890),  47  Ohio  St.  207; 
24  N.  E.  269 ;  7  L.  R.  A.  701 ;  43 
Amer.  &  Eng.  R.  Cas.  97.  Plain- 
tiff recovered  judgment  for  dam- 
ages for  injuries  inflicted  on  her 
while  walking  along  a  much  used 
public  street  in  a  citj',  by  the  fall- 
ing of  a  hammer  from  an  over' 
head  bridge  in  course  of  con- 
struction on  defendant's  line  of 
railway.  The  evidence  showed 
that  when  the  necessary  riveting 
was  being  done  the  workmen  had 
to  work  very  rapidly,  and  as  a 
result  rivets,  tools,  etc.,  frequently 
fell  to  the  ground  beneath,  ren- 
dering travel  unsafe.  The  bridge 
was  constructed  by  contractors  of 
large  experience.  The  work  was 
being  done  under  state  authority 


and  with  the  city's  consent.  The 
court  instructed  that  it  was  no 
defense  that  the  work  was  being 
done  by  independent  contractor.^. 
This  was  affirmed  on  appeal. 
Philadelphia,  etc.,  R.  v.  Mitch- 
ell (1908.  Md.),  69  Atl.  422;  17 
L.  R.  A.  (N.  S.),  974,  citing 
cases. 

'"McNuIty  v.  Ludwig  (1908), 
109  N.  Y.  Supp.  703.  While 
plaintiff  was  walking  along  the 
street,  she  was  injured  by  terra 
cotta  gargoyle  falling  on  her  from 
a  building.  Defendant  had  been 
employed  by  the  building  owner 
to  decorate  it  and  had  completed 
it  two  days  before  the  accident. 
The  building  itself  was  unfinished. 
The  contractor,  after  the  decora- 
tions were  done,  had  placed  ropes, 
etc.,  on  parts  covered  thereby 
which  might  have  disarranged 
them,  l)ut  there  was  also  evidence 
that  they  flapped  in  the  wind,  and 
that  when  one  of  the  large  bunt- 
ings came  down,  after  being 
blown  up  by  the  wind,  it  brought 
with  it  the  terra  cotta  which 
struck  plaintiff,  and  it  was  held 
that  defendant's  negligence  was 
not  established.  Cross  v.  Koster 
(1897,  N.  Y.  App.  Div.),  3  Amer. 
Neg.  Rep.  256. 


CHAPTER    IV. 

Employer's  Exceptional  Liability — II.  Character  of 

Obligation. 


SECTION 

85.  Absolute  duty. 

86.  Statutory   duty,   generally. 

87.  Same — Excavating,   general- 

ly. 

88.  Same — Same — Shoring. 

89.  Same — Authorized  appropri- 

ations. 

90.  Same— Conditional      under- 

takings. 

91.  Same — Licensee's  liability  to 

public. 

92.  Proprietor's   duty   regarding 

sidewalks. 

93.  Same— Regarding  highways. 

94.  Same — R  e  m  o  v  i  n  g       con- 

demned buildings. 

95.  Same— As  to  adjoining  own- 

ers. 

96.  Same— Condition    of    prem- 

ises generally. 

97.  Same— Duty  to   supervise. 

98.  Same— Duty  as   to   invitees. 


SECTION 

99.     Same — Furnishing     a  p  p  li- 
ances. 

100.  Building  contracts,  general- 

ly. 

101.  Same — Relation,  how  shown. 

102.  Same — Management  of  ma- 

chinery. 

103.  Same— Party  walls. 

104.  Same — Removing  dangerous 

wall. 

105.  Same — Exempt  though  fatal. 

106.  Landlord  and  tenant,  gener- 

ally. 

107.  Same— Discharging     legal 

duty. 

108.  Same— Personally    supervis- 

ing. 

109.  Same— W  o  r  k     imminently 

dangerous. 

110.  M  a  s  t  e  r's      non-assignable 

duty. 


Sec.  85.    Absolute  Duty. 

The  broadest  statement  of  this  exceptional  liabih'ty  is 
as  follows :  "The  weig-ht  of  reason  and  authority  is  to  the 
effect  that  where  a  person  is  under  a  duty  to  the  public  or 
third  person  to  see  that  work  he  is  about  to  do,  or  have 
done,  is  carefully  performed,  so  as  to  avoid  injury  to  others, 

1G8 


employer's  exceptional  liability. 


169 


he  can  not,  by  letting  it  to  a  contractor,  avoid  his  liability, 
in  case  it  is  negligently  done  to  the  injury  of  another."  ' 
"There  are  certain  absolute  duties  resting  upon  natural 
persons  and  corporations,  either  by  operation  of  law  or  by 
reason  of  having  been  voluntarily  assumed.  The  law  does 
not  permit  a  person  or  corporation  to  cast  off  such  a  duty 
upon  an  independent  contractor,  so  as  to  exonerate  himself 
or  itself  for  the  consequences  of  its  nofi-performance."  ^ 
Where  a  person  is  bound  to  the  performance  of  an  act  as 
a  duty,  or  is  held  to  a  certain  standard  of  conduct,  he  can 
not  escape  responsibility  by  intrusting  its  perfomiance  to 
another;  and  if  the  person  so  intrusted  fails  to  perform  such 
act,  or  conform  to  such  standard  of  conduct,  whether  he 
bore  the  relation  of  contractor  or  servant,  the  person  on 
whom  the  duty  rests  is  liable  for  his  negligence,  and  it  is 
immaterial  whether  the  obligation  is  imposed  by  contract 
or  general  law.^ 


^  Covington,  etc.,  Co.  v.  Stein- 
brock  (1899),  61  Ohio  St.  215; 
55  N.  E.  618;  76  Amer.  St.  Rep. 
375;  7  Am.  Neg.  R.  154. 

^Thomps.  Neg.,  Sec.  665,  citing 
Jefferson  v.  Chapm.\n  (1889), 
127  Ills.  438;  20  N.  E.  33;  Cabot 
V.  Kingman  (1896).  166  Mass. 
403;  44  N.  E.  344;  33  L.  R.  A.  45. 
Generally,  the  performance  of  no 
duty  owed  to  the  public  or  to  pri- 
vate individuals  can  be  delegated 
so  as  to  escape  liability.  Lebanon 
Light,  etc.,  Co.  v.  Leap  (1894), 
139  Ind.  443;  39  N.  E.  57.  If  a 
person  or  corporation  stands  under 
pre-existing  obligations,  however 
imposed  or  assumed,  to  do  a  par- 
ticular thing,  or  to  do  it  in  a 
particular  way,  such  person  or 
corporation  cannot  unload  such 
responsibility  upon  some  one  else. 


Fowler  v.  Saks  (1890),  7  Mackey 
(D.  C),  507;  7  L.  R.  A.  649. 

'M.attise    v.     Manuf.\cturing 
Co.   (1894),  46  La.  Ann.  1535;  16 
So.  400;  49  Amer.   St.  Rep.  356 
City,  etc.,  Railro.ad  Co.  v.  Moores 
(1894),  80  Md.  348;  30  Atl.  643 
45  Amer.  St.  Rep.  345;  Storrs  v. 
CiTv  of  Utica   (1858),  17  N.  Y 
104;  12  Amer.  Dec.  437;  Colgrove 
V.    Smith    (1894),    102   Cal.   220 
36    Pac.   411;    27   L.   R.    A.    590 
Willi  .VMS   v.   Irrig.mion   Co 
(1892).  96  Cal.   14;  30  Pac.  961 
31    Amer.    St.    Rep.    172;    Pye   v, 
Faxon   (1892),  156  Mass.  471;  31 
N.  E.  640;  Hole  v.  Railro.xd  Co, 
(1861),  6  Hurl.  &  N.  483;  7  Am 
Neg.  R.  157,  n.;  8  Id.  301,  n.     It 
is    a    precept    of    law    that,    when 
the  performance   of  a   duty   rests 
upon    one    absolutely,    he    cannot 


170       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  86.     Statutory  Duty,  Generally. 

If  the  employer  is  under  an  obligation  of  positive  law  to 
do  a  particular  thing,  or  to  observe  particular  safeguards, 
he  can  not  relieve  himself  of  this  liability  by  putting  the 
work  into  the  hands  of  an  independent  contractor.^     Where 


shift  it  to  the  shoulders  of  an- 
other, but  is  still  liable  for  its 
non-performance,  although  the 
fault  be  directly  attributable  to 
an  independent  contractor.  This 
is  equally  true  of  common  law 
duties.  Barrows  Neg.,  p.  164. 
"Of  this  nature  is  the  duty  which 
rests  upon  the  owners  of  fixed 
property  of  guarding  dangerous 
substances  collected  on  their  prop- 
erty, or  of  guarding  dangerous 
work  authorized  by  them  to  be 
done  thereon  so  as  to  prevent 
mischief  to  others.  So,  a  carrier 
of  passengers  is  under  an  obliga- 
tion of  exercising  a  high  degree 
of  care  to  the  end  that  the  vehicles 
and  means  of  transportation,  pro- 
vided by  him,  shall  be  safe  for 
the  purposes  intended ;  which  care 
cannot  be  devolved  by  him  on  an 
independent  contractor.  Other 
public  duties  are  devolved  upon 
railroad  companies  and  other  cor- 
porations by  their  charters ;  and 
it  is  a  sound  view  that  they  can 
not  escape  responsibility  for  the 
failure  to  perform  such  duties  by 
delegating  the  performance  of 
them  to  independent  contractors 
who  may  be  pecuniarily  irre- 
sponsible, each  of  whom  may 
proceed  into  the  country  with  an 
army  of  laborers  and  perform  the 
most  oppressive  acts  towards  sep- 
arate agricultural  proprietors,  who, 
if   such    were   the   law,   would   be 


left  substantially  without  remedy." 
Thomps.  Neg.,  Sec.  665,  referring 
to  Clark  v.  Hannibal,  etc.,  R.  Co. 
(1865),  36  Mo.  202;  Meyer  v. 
Midland,  etc.,  R.  (1873),  2  Nebr. 
319;  McKinley  v.  Chicago,  etc., 
R.  (1890),  40  Mo.  App.  449.  It 
has  been  held  in  many  cases  that 
where  the  work  is  wrongful 
naturally,  the  proprietor  is  liable. 
Chicago  v.  Norton,  etc.,  Co. 
(1900),  97  Ills.  App.  651;  (1902), 
196  Ills.  580 ;  63  N.  E.  1043 ;  Mur- 
ray V.  Arthur  (1901),  98  Ills.  App. 
331 ;  Omaha,  etc.,  Co.  v.  Harga- 
dine  (1904,  Nebr.),  98  N.  W. 
1071;  Holliday  v.  National  Tele- 
phone Co.  (1899,  C.  A.),  2  Q.  B. 
392. 

*  Hole  v.  Sittingbourne  Rail- 
road (1861),  6  Hurl.  &  N.  488; 
30  L.  J.  Ex.  81;  7  Am.  Neg.  R. 
157,  n.;  8  Id.  301,  n;  Reuben  v. 
Swigert  (1898),  7  Ohio  Dec. 
638;  15  Ohio  C.  C.  565;  Downey 
V.  Low  (1897),  22  N.  Y.  (App. 
Div.),  460;  48  N.  Y.  Supp.  207. 
"The  reports  contain  a  large  num- 
ber of  cases  in  which  the  plaintiff 
has  been  held  to  be  entitled  tf 
recover  on  the  ground  that  the 
damage  suffered  by  him  resulted 
from  the  infringement  of  a  duty 
imposed  upon  the  defendant  by  a 
statute  or  a  municipal  ordinance." 
Note  to  Anderson  v.  Fleming 
(1903,  Tnd.),  in  66  L.  R.  A.  121, 
citing  cases. 


employer's  exceptional  ll\bility. 


171 


a  statute  or  the  common  law  imposes  the  duty  upon  a  per- 
son to  a  contract  to  take  agreed  precautions  in  the  doing 
of  certain  work,  the  employer  is  bound  to  see  that  such 
precautions  are  taken  and  if  not  taken  the  employer  is 
liable.''  A  person  may  not  invoke  the  rule  of  exemption 
to  excuse  the  non-performance  of  a  duty  cast  on  him  by 
express  statute.  The  sound  rule  is  said  to  be  that  where 
a  statutory  obligation  is  imposed  upon  a  person  he  is  liable 
for  any  injury  which  arises  to  others  in  consequence  of 
its  having  been  negligently  performed;  and  this  whether 
it  were  performed  by  himself  or  by  a  contractor  employed 
by  him."     On  the  contrary,  there  is  a  holding  to  the  effect 


"Water  Co.  v.  Ware  (1872),  16 
Wall.  (U.  S.),  566.  When  the 
obligation  is  raised  by  statute  or 
ordinance,  the  responsibility  for 
its  performance  is  absolute.  Bar- 
rows Neg.,  p.  165.  Sec.  58,  Eng- 
lish Railway,  etc..  Act  of  1845. 
provides  that  if  the  company  shall 
in  the  course  of  making  the  rail- 
way, use  or  interfere  with  any 
road,  it  shall  from  time  to  time 
make  good  all  damage  done  by  it 
to  such  road;  a  railway  compiany 
used  certain  roads  by  the  carriage 
of  building  materials  over  the 
same,  to  be  and  actually  used  ir 
making  such  railway,  etc.  Two 
judges  held  it  had  thereby  done 
damage  to  such  roads,  and  it 
was  held  liable  to  make  good  the 
damage  so  done,  although  the  ma- 
terials were  really  conveyed  in 
the  carts  of  the  contractors  or 
subcontractors,  or  of  other  per- 
sons employed  by  it.  West,  etc.. 
Railroad  v.  Wakefield,  etc..  Board 
(1864).  33  L.  J.  Mag.  Cas.  (N. 
S.),  174. 


"■Gray  v.  Pullen  (1864),  5  Best. 
&  S.  970;  7  Am.  Neg.  R.  158,  n. ; 
Hole  v.  Sittingbourne  Railroad. 
supra;  Weber  v.  Buffalo  Railroad 
Co.  (1897),  47  N.  Y.  Supp.  7. 
Decisions  holding  employers  liable 
for  the  non-performance  by  inde- 
pendent contractors  of  duties  im- 
posed by  express  statute  '"really 
fall  within  the  class  of  cases 
*  *  *  which  hold  that  a  person 
cannot  excuse  the  doing  of  an  act 
unlawful  per  se,  by  alleging  that 
it  was  done  by  another,  who  con- 
tracted to  do  it  for  him.  A 
statute  empowers  a  person  or 
corporation  to  do  a  certain  act  in 
a  certain  way.  He  attempts  to 
do  it.  but  does  it  in  a  different 
way.  In  so  far  as  he  does  it  in  a 
different  way  it  is  an  unlawful 
act,  generally  a  nuisance.  If  an 
injur}-  happens  to  one  in  conse- 
quence of  its  being  thus  done  in 
an  unlawful  manner,  he  cannot 
avoid  liability  by  alleging  that  the 
wrong  was  that  of  one  with  whom 
he  had  contracted  to   do   the   act 


172       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY 

that  the  principle  of  liability  applies  only  where  there  is 
an  express  and  fully  defined  statutory  duty,  absolutely  im- 
posed upon  the  owner  of  the  premises,  pointing  out  how 
and  when  he  is  to  perform  it;  and  upon  this  theory  it  was 
held  that  a  Pennsylvania  statute,  relating  to  a  natural  gas 
company,  enacting  "that  any  company  laying  a  pipe-line 
under  the  provisions  hereof,  shall  be  liable  for  all  damages 
occasioned  by  reason  of  the  negligence  of  such  gas  com- 
pany," did  not  extend  so  far  as  to  make  such  a  company 
liable  for  damages  caused  by  an  explosion  which  took  place 


lawfully,  but  who  did  it  unlaw- 
fully. The  privilege  of  doing  or 
having  the  act  done  for  his  bene- 
fit is  granted  only  on  condition 
of  its  being  done  in  a  certain  way, 
and  he  impliedly  agrees  to  an- 
swer for  injuries  which  may  flow 
from  the  doing  of  the  act  unless 
it  is  done  in  that  way.  If  we 
pause  to  consider  the  effect  of 
these  decisions,  we  shall  see  that 
they  go  far  toward  bringing  us 
back,  to  the  doctrine  of  Bush  v. 
Steixman  (1799,  1  Bos.  &  P. 
404)."  Thomps.  Neg.,  Sec.  667, 
p.  607.  Under  a  statute  requiring 
contracts  for  curbing  streets  to 
provide  that  the  work  be  done 
under  the  immediate  supervision 
of  the  mayor  and  city  engineer, 
it  is  the  city's  duty  to  use  at  least 
ordinary  care  to  see  that  the 
stones  are  not  placed  and  kept  in 
a  dangerous  condition,  and  where 
a  boy  was  injured  by  the  fall  of 
a  stone  placed  in  an  unstable  posi- 
tion, it  is  no  defense  to  show 
that  an  independent  contractor 
was  doing  the  work.  Frankfort 
V.    Allen     (1904),    26    Ky.    L.    R. 


581;  82  S.  W.  292.  Sees.  1166-7, 
Tennessee  Code,  touching  the  lia- 
bility which  railroads  incur  by 
failing  to  observe  certain  precau- 
tions in  running  their  trains,  do 
not  apply  to  contractors  engaged 
in  constructing  a  railroad.  Griggs 
V.  Houston  (1881),  104  U.  S. 
553;  8  Amer.  &  Epg.  R.  Cas.  359, 
per  Waite,  C.  J.  In  actions 
against  a  railroad  company  for 
injuries  caused  by  negligence  .in 
restoring  a  highway  after  building 
its  road  as  required  by  statute 
(Tex.,  R.  S.,  Art.  4426),  it  is 
no  defense  that  the  work  was  be- 
ing done  by  an  independent  con- 
tractor. Here  the  company  was 
held  liable  where,  in  running  its 
road  across  a  highway,  a  tem- 
porary way  was  built  for  the  pub- 
lic across  the  track,  which,  on 
completing  the  road  and  restoring 
the  crossing,  was  left  in  a  dan- 
gerous condition  and  notice  there- 
of was  not  given  the  public. 
Texas,  etc.,  R.  v.  Johnson  (1899, 
Tex.  Civ.  App.),  6  Amer.  Neg. 
Rep.  716. 


EMPLOYER  S  EXCEPTIONAL   LIABILITY. 


173 


while  its  pipes  were  being  laid,  and  which  was  attributable 
to  the  negligence  of  an  independent  contractor  employed  in 
laying  them,  the  company  not  having  accepted  the  work  and 
having  no  notice  of  the  fact  that  the  contractor  was  pro- 
ceeding with  the  work  in  a  negligent  manner." 

Sec.  87.     Same,  Excavating-,  Generally. 

If  there  is  an  absolute  duty,  by  common  law  or  statute, 
upon  a  proprietor  proposing  to  excavate  for  the  purpose  of 
building,  it  will  be  no  defense  to  the  action  of  an  adjoining 


''  Chartiers,  etc.,  Gas  Co.  v. 
Waters  (1838),  123  Pa.  St.  220; 
16  Atl.  423.  "It  should  be  ob- 
served in  reference  to  this  case 
that  it  was  not  well  decided,  upon 
the  ground  already  considered 
{ante,  Sec.  652),  that  a  proprietor 
who  employs  an  independent  con- 
tractor to  do  the  work  which, 
unless  guarded  and  cared  for,  is 
likely  to  lead  to  mischief,  is 
under  t'ne  personal  obligation  of 
taking  care  and  pains  to  prevent 
such  mischief.  All  experience  af- 
firms the  conclusion  that,  with 
the  exception  of  gunpowder,  dyna- 
mite, and  similar  explosives,  few 
substances  are  more  likely  to 
lead  to  mischief,  unless  properly 
guarded,  than  what  is  called  nat- 
ural gas."  Thomps.  Neg.,  Sec. 
667,  note  97.  "In  order  that  an 
employer  may  be  held  liable  on 
the  ground  that  his  contractor 
violated  a  statutory  duty  imposed 
on  him,  the  terms  of  the  statute 
must  be  such  as  to  show  that  the 
legislature  intended  to  subject 
him  to  an  express  and  definite 
obligation,    either    as    regards    the 


work  which  he  is  to  do  or  as 
regards  the  manner  in  which  he 
is  to  do  it."  Note  to  Anderson 
V.  Fleming  (1903,  Ind.),  66  L.  R. 
A.  125.  "If  the  statute  relied 
upon  expressly  provides  for  the 
contingency  of  the  works  being 
executed  under  an  independent 
contract  and  declares  that  the 
duty  must  be  fulfilled  by  the  em- 
ployee or  contractor,  the  statute 
will  not  ordinarily  be  construed 
as  enlarging  the  personal  liability 
of  the  employer,  the  intention  of 
the  legislature  being  presumed  to 
be  that  the  duty  shall  then  be  dis- 
charged by  the  employer  only 
when  the  work  is  done  under  his 
immediate  control."  Id,  In  a 
dictum  in  an  Irish  case,  Murphy, 
J.,  was  of  the  opinion  that  even 
if  a  breach  of  a  statutory  obliga- 
tion had  been  proved,  the  owner's 
liability  did  not  extend  beyond 
the  penalty  of  the  statute.  This 
view  is  condemned  by  a  learned 
annotater  and  author.  Crawford 
V.  Peel  (1887),  Ir.  L.  R.  20,  C. 
P.  332.  Criticised  in  Labatt  on 
Master  &  Servant.   Sees.   799-800. 


174       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

owner,  injured  by  a  violation  of  it,  that  the  former  engaged 
an  independent  contractor  to  do  it.^  The  rule  under  this 
head  has  been  extended  to  cases  where  a  railroad  is  by 
statute  authorized  to  construct  its  road  across  a  highway, 
and  by  the  negligence  of  an  independent  contractor  the 
highway  is  rendered  unsafe,  even  though  the  statute  does 
not  expressly  require  the  railroad  to  observe  particular 
safeguards.'* 

Sec.  88.     Same,  Shoring  Excavations. 

The  liability  of  the  landowner  making  an  excavation 
for  the  trespass  of  his  contractor  in  entering  an  adjoining 
building  of  the  plaintiff  for  the  purpose  of  shoring  it  up, 
where  there  was  a  statute  requiring  the  excavating  land- 
owner to  shore  up  his  neighbor's  buildings,  was  discussed 
in  a  leading  New  York  case.^"  In  Pennsylvania  it  is  held 
that  if  the  house  of  an  abutting  owner  is  undermined  and 
destroyed  as  the  direct  result  of  the  construction  of  a  sub- 
way on  which  the  house  abuts  because  of  the  contractor's 


*Dorrity  v.  Rapp  (1878),  72  N. 
Y.  307.  See,  also,  Sees.  95,  141, 
et  seq.,  post. 

*  Deming  v.  Terminal  Railway 
Co.  (1900),  49  N.  Y.  App.  Div. 
493;  63  N.  Y.  Supp.  615.  Cf., 
Sec.  116,  et  seq.,  post.  Unless  the 
obligation  to  place  a  boarding  in 
front  of  a  building  under  erection 
is  imposed  by  a  statute  applicable 
to  the  locality  in  which  the  work 
is  being  executed,  the  owner  of 
the  building  is  not  liable  for  in- 
juries resulting  from  the  fact  that 
the  contractor  by  whom  it  was 
being  erected,  omitted  to  put  up 
the  boarding.  Crawford  v.  Peel 
(1887),  Ir.  L.  R.,  20  C.  L-  332. 
But  see  note  7,  supra. 


"Ketcham  v.  Newman  (1894), 
141  N.  Y.  205;  36  N.  E.  197;  24 
L.  R.  A.  102.  Where  the  walls 
of  a  house  adjacent  to  one  being 
erected  for  defendant  falls  as  a 
result  of  the  fact  that  the  trench 
of  the  wall  of  the  new  house  is 
excavated  by  the  contractor  for 
the  work  to  the  depth  indicated 
by  the  plans,  and  by  reason  of 
such  contractor's  failure  to  shore 
up  the  adjacent  wall  properly,  the 
injury  is  deemed  to  be  the  conse- 
quence of  the  act  which  the  con- 
tractor was  employed  to  do  and 
the  landowner  is  therefore  liable. 
Wheelhouse  v.  Darch  (1877),  28 
U.  C.  C.  P.  269. 


employer's  exceptional  liability. 


175 


negligence,  the  employing  city  will  be  liable,  for  the  reason 
that  the  work  is  of  such  a  kind  that  unless  it  is  guarded, 
attended  to  and  shored  up  by  the  party  doing  the  work 
{i.  c,  the  city)  it  is  likely  to  lead  to  mischief  to  the  prop- 
erty of  abutting  owners,  which  circumstance  puts  upon  the 
city  the  primary  duty  of  seeing  that  it  is  so  guarded  and 
shored  up.  which  duty  it  cannot  cast  off  upon  an  indepen- 
dent contractor,  who  may  be  insolvent,  so  as  to  shift  its 
responsibility  for  the  damages. ^^ 

Sec.  89.     Same,  Authorized  Appropriations. 

If  the  charter  of  a  corporation  formed  for  public  pur- 
poses authorizes  it  to  enter  upon  the  land  of  private  pro- 
prietors and  take  therefrom  materials  to  be  used  in  the  con- 
struction of  its  works,  the  corporation  will  be  answerable 
for  any  such  materials  taken  by  its  contractors,  wdiether  it 
authorized  the  taking  or  not,  and  no  matter  what  its  ar- 
rangements between  itself  and  its  contractors  may  be.^^ 

Sec.  GO.     Same,  Conditional  Undertakings. 

There  is  substantial  unanimity  in  the  view,  that  when  a 
valid  statute  or  municipal  ordinance  commands  the  ob- 
servance of  certain  precautions  in  doing  particular  work, 


"Marsh  v.  Philadelphia  (1S94), 
8  Pa.  Dist.  Rep.  340;  Stork  v. 
Phil.mielphia  (1900),  195  Pa.  St. 
101;  45  Atl.  678;  49  L.  R.  A.  600; 
(1901),  199  Pa.  St.  4G2;  49  Atl. 
236. 

'-  Lesher  v.  Wab.\sh,  etc.,  Co. 
(1852),  14  Ills.  85;  56  Amer.  Dec. 
494;  Hinde  v.  Wabash,  etc.,  Co. 
(1853),  15  Ills.  72.  If  any  specinl 
provision  of  a  statute  authorizing 
a    lease    by    a    railroad    company 


has  not  been  duly  followed,  the 
result  is  the  same  as  if  the  con- 
tract of  lease  had  been  wholly 
unauthorized.  Ricketts  v.  Chesa- 
PE.\KE,  ETC.,  Railroad  (1890),  33 
W.  Va.  433;  10  S.  E.  801;  7  L. 
R.  A.  354;  25  Amer.  St.  Rep. 
901 ;  Freeman  v.  Minneapolis,  etc., 
Riilroad  Co.  (1881),  23  Minn. 
4-^3 ;  10  N.  W.  5"4.  See,  general- 
ly, as  to  lessee  operating  road, 
Sec.    126. 


176       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  work  is  to  be  deemed  inherently  dangerous,  unless  these 
precautions  are  taken.  In  such  cases  the  employer  is  bound 
to  see  that  the  precautions  are  taken,  and  can  not  escape 
responsibility  by  letting  the  work  to  ever  so  skillful  or 
careful  a  contractor. ^^  If  a  permit  to  place  building  ma- 
terial in  the  street  is  coupled  with  a  condition  that  it  be 
lighted  and  guarded,  the  lot  owner  is  liable  for  the  failure 
of  a  contractor  to  light  and  guard  material  placed  there. ^^ 
Where  an  employer  is  bound  by  a  statute  to  do  a  thing 
efficiently  and  an  injury  results  from  its  inefficiency  the 
employer  is  liable.  ^^  In  a  leading  English  case,  a  railway 
company  was  empowered  by  statute  to  construct  a  railway 
bridge  across  a  navigable  river,  the  statute  providing  that 
it  should  not  be  lawful  to  detain  any  vessel  navigating  the 
river  for  a  longer  time  than  sufficient  to  enable  any  car- 
riages, animals  or  passengers,  ready  to  traverse,  to  cross 
the  bridge,  and  to  open  it  to  admit  such  vessel.  The  com- 
pany employed  a  contractor  to  construct  the  bridge  in  con- 
formity with  the  statute;  but  before  the  work  was 
completed,  the  bridge,  from  some  defect  in  its  construction. 


'^'Gray  v.  Pullen  (1864),  5  B. 
&  S.  970;  7  Am.  Neg.  R.  158,  n. ; 
Wilson  v.  White  (1883),  71 
Ga.  506;  51  Amer.  Rep.  259; 
Atlanta,  etc.,  Railroad  v.  Kim- 
BERLEY  (1891),  87  Ga.  161;  13 
S.  E.  277;  27  Amer.  St.  Rep.  231; 
Hinde  v.  Wabash,  etc..  Railroad 
(1853),  15  Ills.  72;  Bramiock  v. 
Elmore  (1892),  114  Mo.  55;  21 
S.  W.  451 ;  Houston,  etc..  Rail- 
road V.  Meador  (1878),  50  Tex. 
//;  Smith  v.  Milwaukee,  etc., 
Exchange  (1895),  91  Wise.  360; 
64  N.  -W.  1041 ;  51  Amer.  St.  Rep. 
912. 

"Reuben  v.  Swigart  (1898),  7 
Ohio  Dec.  638;  15  Ohio  C.  C.  565. 


''Berg  v.  Parsons  (1898),  156 
N.  Y.  109;  50  N.  E.  957;  41  L. 
R.  A.  391 ;  66  Amer.  St.  Rep.  542; 
4  Am.  Neg.  R.  432,  citing  Smith 
V.  Milwaukee,  etc..  Exchange, 
supra.  The  New  Jersey  courts 
seem  to  hold  the  view  of  Berg  v. 
Parsons,  as  see  Cuff  v.  Newark, 
etc.,  Railroad  (1870),  35  N.  J. 
Law,  1;  10  Amer.  Rep.  205;  16 
Am.  Neg.  Gas.  668,  n. ;  Schutte 
V.  United  Electric  Co.  (1902),  68 
N.  J.  Law,  435;  53  Atl.  204;  16 
Am.  Neg.  R.  614,  n ;  and  see  Hoff 
V.  Shockley  (1904),  122  Iowa, 
720;  98  N.  W.  573;  64  L.  R.  A. 
538;  101  Amer.  St.  Rep.  289;  16 
Am.   Neg.  R.  607,  n. 


employer's  exceptional   LLVBILITY. 


177 


could  not  be  opened  and  plaintiff's  vessel  was  prevented 
from  navigating  the  river.  The  defendant  company  was 
held  liable  for  the  damage.'"  A  corporation  bound,  in  con- 
sideration of  the  franchise,  to  keep  a  road  or  bridge  in 
repair,  is  liable  for  injury  to  a  person  from  want  of  repair, 
whether  the  defect  is  patent  or  latent,  unless  the  plaintiff 
was  in  default  or  the  defect  was  due  to  inevitable  accident, 
tempest  or  lightning,  or  a  third  person's  wrongful  act,  of 
which  it  had  no  notice  or  knowledge;  and  this  liability 
attaches  although  ordinary  care  was  used  in  the  erection  or 
repair,  and  the  work  was  done  by  competent  workmen  under 
contract. ^^  It  has  been  held  that  an  ordinance  imposing  a 
penalty  upon  the  owner  or  general  contractor  engaged  in 
the  construction  of  a  building  over  a  certain  height,  who 


^"  Hole  v.  Sittingbourne,  etc.^ 
Railroad  (1851),  6  Hurl.  &  N. 
483;  30  L.  J.  Ex.  81.  Under  an 
English  statute,  defendant  was 
empowered  to  make  a  drain  from 
his  premises  to  a  sewer,  by  cut- 
ting a  trcriCh  across  the  highway. 
The  statute  carefully  provided 
that  where  the  surface  of  a  high- 
way should  be  thus  broken,  the 
one  breaking  it  should  restore  it 
to  its  former  condition,  or  be  sub- 
ject to  a  penalty  for  a  failure  to 
do  so.  Defendant  employed  to 
do  this  a  contractor  by  whose 
negligence  the  drain  was  improp- 
erly filled,  in  consequence  of 
which  damages  ensued  to  plaintiff. 
The  Queen's  Bench  was  unani- 
mously in  favor  of  defendant.  On 
appeal,  the  Exchequer  Chamber 
was  unanimously  in  favor  of  re- 
versal. Gray  v.' Pullen  (1864).  5 
Best.  &  S.  970. 

"  Pennsylvania,    etc.,     Co.    v. 


Graham  (1869),  63  Pa.  290;  3 
Amer.  Rep.  549.  Cf.,  Downey  v. 
Lowe  (1897),  22  App.  Div.  460; 
48  N.  Y.  Supp.  207,  in  which  the 
plaintiff  fell  into  a  coal  chute 
left  in  the  highway  by  the  li- 
censee's contractor.  A  private 
railway  track  was  built  to  a  cer- 
tain manufacturing  establishment, 
under  a  city  license  on  stringent 
conditions,  designed  to  prevent 
accidents.  No  one  but  the  de- 
fendant company  had  any  right 
to  build  or  maintain  it.  Hence, 
all  who  used  the  track  for  the  pur- 
poses for  which  it  was  con- 
structed were  held  to  be  using  it 
as  the  owner's  agents,  for  whose 
acts  they  were  liable.  This  ap- 
plies even  to  the  operatives  of  the 
railway  company  with  whose  track 
the  private  track  in  question  was 
connected.  McWilliams  v.  De- 
troit, etc..  Co.  (1875),  31  Mich. 
274. 


178       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


fails  to  build  a  temporary  roof  over  the  sidewalk  in  front 
of  the  building,  does  not  enlarge  the  liability  of  the  prop- 
erty owner  and  that  it  applies  to  the  owner  only  in  cases 
where  the  building  is  being  erected  under  the  direction  and 
control  of  the  owner. ^® 

Sec.  91.     Licensee's  Liability  to  Public. 

On  the  other  hand,  the  New  York  Court  of  Appeals,  in 
a  case  wherein  a  license  or  grant  was  given  by  the  authori- 
ties of  a  city  to  certain  persons  to  construct  a  sewer  in  one 
of  its  streets,  with  the  proviso  "that  the  grantees  should 
cause  proper  guards  and  lights  to  be  placed  at  the  excava- 
tion, and  should  be  answerable  for  any  damages  or  injuries 
which  might  be  occasioned  to  persons,  animals  or  property 
in  the  construction  of  the  sewer,"  held  that  this  provision 
did  not  inure  to  the  benefit  of  a  stranger,  so  as  to  render 
the  grantees  liable  to  him  for  the  negligence  of  an  inde- 
pendent contractor,  to  whom  they  had  let  out  the  job  and 
for  whose  negligence  they  would  not  ordinarily  be  respon- 
sible.^^ But  this  was  questioned  by  the  same  court  in  a 
later  case.^"     A  street  railroad  company's  liability  to  pay 


^«Koch  V.  Fox  (1892),  75  N. 
Y.  Supp.  913.  The  employer  was 
held  liable  in  several  early  Scotch 
cases  where  a  contractor  failed 
to  fence  off  a  building  under  erec- 
tion in  accordance  with  the  provi- 
sions of  a  police  act.  Binnie  v. 
Parlane  (1825),  4  Sc.  Sess.  Cas., 
1st  series,  122;  Chapman  v.  Par- 
lane  (1825),  3  Sc.  Sess.  Cas.,  1st 
series,  585.  T.ia])ility  for  the 
breach  of  the  imperative  duty  im- 
posed by  a  city  license  upon  one 
owning  a  building  being  con- 
structed to  keep  secure  a  roof 
bui!t  over  the  sidewalk  so  as  to 


prevent  accidents  to  pedestrians, 
cannot  be  avoided  by  the  fact  that 
the  roof  fell  in  consequence  ot  an 
excavation  made  by  an  indepcn- 
cent  contractor.  Scheller  v.  Sil- 
bermintz  (1906),  50  Misc.  175;  98 
N.  Y.  Supp.  230. 

^^  Blake  v.  Ferris  (1851),  5  N. 
Y.  48;   55  Amer.  Dec.  334. 

^''Storrs  v.  Utica  (185^),  17  N. 
Y.  106;  72  Amer.  Dec.  437.  "It 
is  manifestly  contrary  to  sound 
principle.  If  A.  makes  a  contract 
with  B.  for  the  protection  of  C, 
and  C.  is  injured  in  consequence 
of    B.    breaking    the    contract,    C. 


employer's  exceitioxal  liability. 


179 


damages  to  persons  for  injuries  resulting  from  its  per- 
formance of  the  work  of  reconstructing  a  highway  bridge 
over  a  canal,  such  work  being  done  under  a  permit  granted 
upon  the  condition  that  those  damages  shall  be  paid,  can 
not  be  avoided  by  delegating  the  work  to  a  contractor.^^ 
A  person  who  obtains  a  license  from  municipal  authorities  to 
encumber  a  street  while  his  ice  house  is  being  filled  is  liable 
for  injuries  caused  by  unlawful  obstructions  created  in  the 
street  by  blocks  and  fragments  of  ice,  although  the  work  is 
done  for  him  by  a  contractor.^^     Where  a  person  fell  into 


may  recover  damages  of  B."' 
Thomps.  Nag.,  Sec.  674,  citing 
Langridge  v.  Levy  (1837),  2 
Mees.  &  W.  519;  4  Mees.  &  W. 
337.  In  the  case  cited  the  city 
granted  a  license  containing  a 
certain  proviso  intended  for  the 
protection  of  its  citizens.  When 
the  grantee  accepted  the  license, 
the  proviso  acquired  the  force  of 
a  contract.  The  one  to  whom  the 
defendant  delegated  the  construc- 
tion of  the  work  failed  to  take 
the  precautions  stipulated  for  in 
the  proviso,  and  in  consequence 
of  this,  a  citizen,  for  whose  bene- 
fit the  proviso  was  intended,  was 
injured.  ''Here  was  clearly  a 
cause  of  action,  on  his  part, 
against  the  defendant.  If  there 
was  not,  eflforls  of  this  kind  on 
the  part  of  a  city  to  protect  its 
citizens  must  be  rendered,  to  a 
great  extent,  nugatory.''  Thomps. 
Neg.,     p.     617,     citing     Hole     v. 

SiTTINGCOUR.N'E,        ETC..         RAILROAD 

(1861),  6  Hurl.  &  N.  48S. 

^  Weber  v.  Buffalo  Railroad  Co 
(1897).  20  App.  Div.  292;  47  N. 
Y.  Supp.  7. 

"  Darmstaetter    v.    Monahan 


(1873),  27  iMich.  188.  "The  vir- 
tual effect  of  this  doctrine  is  that 
the  privilege  so  granted  is  re- 
garded as  being  subject  to  the 
implied  condition  that  the  licensee 
shall  see  to  it,  at  his  peril,  that 
the  safety  of  the  public  is  secured, 
so  far  as  that  result  can  be  at- 
tained by  the  exercise  of  reason- 
able care.  A  fortiori  will  the  li- 
censee be  held  liable  for  the  non- 
performance of  that  duty  where 
an  express  condition  to  this  effect 
was  attached  to  the  grant  of  the 
privilege."  Note  to  Anderson  v. 
Fleming  (1903.  Ind.),  66  L.  R. 
A.  135.  A  builder  licensed  to 
erect  a  boarding  which  encroached 
on  a  street,  made  it  with  a  mov- 
able panel  for  convenience.  Once 
when  the  one  whose  duty  it  was 
to  remove  the  panel  was  away,  a 
subcontractor's  employee  removed 
it  and  placed  it  so  negligently 
that  it  was  blown  down  injuri-  g 
a  passerby.  The  builder  was  held 
liable  on  the  ground  that  hav'ng 
received  a  license  to  encroach  on 
a  public  street  to  facilitate  the 
erection  of  the  buildinpr,  he  was 
under  a  special  obligation  to  the 


ISO       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  opening  made  by  removing  under  a  license  from  the 
civil  authorities  a  grating  over  an  area,  the  Illinois  court 
held  the  person  injured  could  not  recover  from  the  land- 
owner. This  was  very  soon  afterwards  disapproved  by  the 
United  States  Supreme  Court,  but  was  later  followed  by 
the  court  of  its  origin. ^^ 


Sec.  ^'^ 


iJ^, 


Proprietor's  Duty  Regarding  Sidewalks. 

There  is  considerable  conflict  of  authority  as  to  the  lia- 
bility of  the  proprietor  of  premises  for  the  acts  of  an  inde- 
pendent contractor  or  of  his  servants  in  creating  defects  in 
or  dangerous  conditions  upon  public  sidewalks  adjoining 


public  carefully  to  exercise  the 
privilege  and  not  interfere  with 
the  safety  of  passersby.  Evans 
V.  Martin  (1880j,  6  Vict.  L.  R. 
176. 

^ScAMMON  V.  Chicago  (1861), 
25  Ills.  424;   79  Amer.  Dec.  334; 
14  Am.  Neg.  Cas.  418,  n. ;  Chicago 
V.    Robbins    (1862),   2   Black    (U. 
S.),  418;  (1866),  4  Wall.  (U.  S.), 
657;  Keppcrly  v.  Ramsden  (1876), 
83  Ills.  554.     '-placing  an  obstruc- 
tion such  as  the  one  involved  in 
this   case    (/.    e.,  a   pile  of  cinder 
alongside   a    street   car   track)    in 
the  street  is  prima  facie  unlawful. 
If  the  person  so  placing  the  ob- 
struction   relies    upon    an    express 
license  obtained  from  the  city,  the 
burden  is  on  him  to  show  the  ex- 
istence of  the  permit;  or,  if  it  is 
his  contention  that  the  obstruction 
is  of  a  character  such  as  he  may 
lawfully  place  in  the  street  with- 
out any  express  permission   from 
the  city  authorities,  then  such  cir- 
cumstances must  appear  in  proof. 
.     .     .     Having  placed   an   unlaw- 


ful  obstruction    in    the    street,    its 
liability      for      the      consequences 
thereof  continued,  notwithstanding 
it   may   also   have   been    the   duty 
of   the   contractor  to    remove   the 
obstruction."     Woodman  v.   Met- 
ropolitan   Railroad    Co.    (1889), 
149  Mass.  335;  21   N.   E.  482;  4 
L.  R.  A.  213;   14  Amer.  St.  Rep. 
427;  6  Rail.  &  Corp.    (L.  J),  72;  ' 
12  Am.  Neg.  Cas.  80.     "Appellant 
placed     this     obstruction     in     the 
street  at  its  peril.     It  was  bound 
to    answer    for    the    consequences. 
.     .     .     After  the  cinders  were  in 
the  street,  the  first  and  most  im- 
perative   duty    that    rested    upon 
appellant  and  the  contractor  was 
to  remove  them.     After  they  were 
there,    however,    and    until    they 
could  be  removed,  it  was  the  duty 
of  appellant,  as  well  as  the  con- 
tractor,    to      guard      the      public 
against    any    injury   from   the   ob- 
struction."     Kenyon    v.     Chicago 
City  Railway  Co.  (1908),  235  Ills. 
406;  85  N.  E.  660. 


employer's  exceptional  ll\bility. 


181 


such  premises,  and  such  conflict  is  noticeable  even  in  the 
decisions  of  the  same  given  jurisdiction.  On  the  one  hand 
the  rule  as  to  liability  for  safety  of  premises  has  been  ex- 
tended to  the  protection  of  pedestrians  in  a  public  way  in- 
jured by  inadvertently  falling  into  unguarded  excavations 
adjacent  to  the  sidewalk.-"*  In  New  York  one  who  had  con- 
tracted to  build  a  block  of  houses  and  who  had  let  out  the 
work  of  excavating,  blasting,  etc.,  to  a  subcontractor,  was 
held  responsible  for  injury  to  a  third  person  occasioned 
by  falling  into  an  excavation  made  in  the  sidewalk  by  the 
subcontractor  or  his  servants,  notwithstanding  the  fact 
that  the  subcontractor  had  stipulated  to  guard  against  acci- 
dents by  proper  precautions  and  to  make  good  all  damages, 
on  the  principle  that  the  work  contracted  for  was  wrongful 
per  se,  the  consent  of  the  public  authorities  not  having  first 
been  obtained,  and  the  principal  contractor  hence  became 
quasi-insurcr  of  the  public  against  the  injurious  conse- 
quences of  it.-^  "A  person  wdio  maintains  for  his  own  con- 
venience, on  the  surface  of  a  public  footpath  adjacent  to 
the  premises  occupied  by  him,  an  aperture  which  is  ordi- 


=^'VViggin  V.  St.  Louis  (1896), 
135  Mo.  558;  37  S.  W.  528. 

^Congreve  v.  Smith  (1858),  18 
N.  Y.  79;  Chase's  C.  Torts.  180; 
Creed  v.  Hartman  (1864),  29 
N.  Y.  591;  86  Amer.  Dec.  341. 
The  fact  of  letting  to  an  indepen- 
dent contractor  t,he  work  of 
building  area  walls  and  construct- 
ing coal  vaults  under  a  sidewalk 
in  front  of  his  premises  will  not 
relieve  the  owner  of  a  city  lot 
from  his  personal  duty  of  seeing 
that  an  excavation  in  a  sidewalk 
which  he  has  made  for  such 
vault,  is  guarded  with  ordinary 
care.     Hence,  where  such  an  ex 


cavation  was  made  originally  by 
the  lot  owner  himself,  the  law 
imposes  on  him  the  personal  duty 
of  guarding  it  with  ordinary  care, 
which  duty  cannot  be  shifted  to 
an  independent  contractor  by  let- 
ting to  him  a  contract  to  con- 
struct the  walls  of  the  vault  and 
to  finish  the  job;  but  if  such  con- 
tractor or  his  servants  negligently 
place  a  defective  covering  in  a 
coal  hole  above  the  vault  and  a 
person  falls  into  it.  the  lot  owner 
is  liable.  Hawver  v.  Whalen 
(1892),  49  Ohio  St.  69;  29  N.  E. 
1049;   14  L.  R.  A.  828. 


182       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY 


narily  covered  by  a  grating-  scuttle,  a  trap-door,  and  who 
makes  a  contract  which  requires  that  the  aperture  shall 
be  opened  while  the  stipulated  work  is  being  performed,  is 
answerable  for  injuries  received  by  a  passerby  in  conse- 
quence of  the  failure  of  the  contractor's  servants  to  close 
the  aperture  or  to  fasten  the  covering  securely."  '^^  So 
also,  the  proprietor  was  held  liable  where  the  servant  of 
an  independent  contractor  left  a  coal  chute  unguarded ;  ^^ 
and  where  such  servants  failed  to  light  and  guard  building 
material  deposited  in  the  street.^^ 


"^Note  to  Jacobs  v.  B'uller, 
ETC.,  Co.  (1902),  67  Ohio  St.  70; 
65  N.  E.  617;  13  Am.  Neg.  R. 
208;  in  65  L.  R.  A.  844,  citing 
cases.  Plaintiff,  a  pedestrian,  who 
fell  into  a  coal  hole  in  a  sidewalk 
adjoining  land  of  defendant,  in 
possession  of  a  tenant,  recovered 
damages,  it  appearing  that  the 
coal  hole  was  used  in  connection 
with  the  land,  and  its  cover  was 
defective  prior  to  the  execution 
of  the  lease,  to  the  knowledge 
(actual  or  implied)  of  the  owner. 
Hill  V.  Hayes  (1908),  199  Mass. 
411;  85  N.  E.  434.  In  repairing 
a  sidewalk  on  a  public  highway, 
independent  contractors  are  re- 
quired to  do  whatever  the  law 
requires  the  property  owner  to  do. 
Kaufman  v.  Roth  well  (1908. 
Tex.),  109  S.  W.  1089;  17  L.  R. 
A.   (N.  S.),  758. 

"Downey  v.  Low  (1897),  48 
N.  Y.  Supp.  207.  "It  is  a  matter 
of  such  common  knowledge  as  to 
require  the  contractors  to  take 
notice  of  it  that  the  sidewalk 
would  be  used  by  pedestrians  at 
night,  and  that  one  who  had  no 
notice  of  the  existence  of  such  an 


obstruction  (planks  laid  across  a 
newly  made  cement  walk)  would 
be  liable  to  stuml)le  on  it  and 
thereby  sustain  an  injury;  it  be- 
comes the  duty,  therefore,  of  the 
contractors  to  guard  against  such 
an  event  by  placing  guards  or 
lights,  etc.  Where  this  is  not 
done,  the  liability  of  the  property 
owner  and  of  the  contractors  is 
bej^ond  question."  Kaufman  v. 
Roth  WELL,  supra. 

^Reuben  v.  Swigart  (1898),  7 
Ohio  C.  Dec.  638;  15  Ohio  C.  C. 
565.  With  reference  to  the  care 
required  in  replacing  the  cover 
of  a  coal  hole  in  a  sidewalk,  the 
distinction  has  been  taken  that 
the  owner  of  the  adjacent  build- 
ing is  not  responsible  for  the 
negligent  manner  in  which  a  coal 
company  performs  its  contract  in 
delivering  coal  through  such  a 
coal  hole,  but  that  such  exemption 
from  responsibility  continues  only 
while  the  coal  company  is  per- 
forming its  contract;  after  which 
time  it  is  the  duty  of  the  owner 
to  give  his  personal  attention,  to 
the  end  that  the  cover  of  the 
holes    is   properly    replaced    so    as 


employer's  exceptional  liability. 


183 


So  also,  as  to  dangerous  conditions  other  than  excava- 
tions. Thus,  the  owner  was  held  liable  where  the  con- 
tractor for  brick-work  on  a  building  failed  to  erect  barri- 
cades to  prevent  injuries  to  persons  on  the  sidewalk  from 
falling  materials.-''  The  defendants,  property  owners,  when 
they  erected  their  awning  over  the  sidewalk  in  front  of 
their  store  were  said,  in  a  recent  Tennessee  case,  to  have 
"assumed  all  the  obligations  of  the  city  to  the  public,  and 
something  more.  It  was  their  duty  to  exercise  a  high  de- 
gree of  care  and  diligence  in  the  construction,  maintenance, 
inspection  and  repair  of  the  awning,  so  as  to  prevent  it  from 
obstructing  the  street,  or  endangering  those  using  it;  and 
their  failure  to  do  so,  or  to  take  proper  precautions  to 
protect  the  public  at  all  times  from  injury  in  any  way 
growing  out  of  its  maintenance  or  repair,  renders  them 
liable  for  the  damages  suffered."  ^" 


to  make  the  sidewalk  safe  for 
pedestrians.  Benjamin  v.  Metro- 
politan Street  Railroad  Co.  (1896), 
133  Mo.  274;  34  S.  W.  590.  The 
owner  of  a  building  cannot  shift 
the  duty  under  which  he  stands 
to  adjoining  owners,  or  to  passers- 
by  on  the  sidewalk  or  street,  of 
keeping  his  building  in  repair,  by 
committing  the  repair  of  it.  after 
a  fire,  to  an  insurance  company, 
which  has  reserved  in  a  policy 
the  right  to  repair  in  case  of  a 
fire.  Steppe  v.  Alter  (1896),  4S 
La.  Ann.  363;  19  So.  147;  55 
Amer.  St.  Rep.  281. 

=»  Young  et  al.  v.  Trapp  (1904), 
118  Ky.  813;  82  S.  W.  429.  The 
New  York  Court  of  Appeals  holds 
that  the  employer  is  liable  if  the 
work  itself  creates  a  dangerous 
condition,  and  that  an  abutting 
owner  for  whom  an   independent 


contractor  was  constructing  a 
wall  in  the  rear  of  his  premises 
was  liable  for  an  injury  to  a  per- 
son, caused  by  a  raised  flagstone 
in  the  driveway  at  its  intersection 
with  the  sidewalk,  where  the 
flagging  was  raised  by  the  con- 
tractor's heavily  loaded  wagons. 
Mullins  V.  Siegel.  Cooper  Co. 
(1905),  183  N.  Y.  129;  75  N.  E. 
1112,  on  appeal  from  88  N.  Y. 
Supp.  737. 

'"  McH.VRGE  V.  Newcomer 
(1907),  117  Tenn.  595;  100  S.  W. 
700;  9  L.  R.  A.  (N.  S.),  298, 
citing  Robbins  v.  Chicago  (1866), 
4  Wall.  (U.  S.).  657;  Jefferson 
V.  Ch.\pman  (1889),  127  Ills.  433; 
20  N.  E.  33;  11  Amer.  St.  Rep. 
139;  Hawver  v.  Wh.vlen  (1892), 
49  Ohio  St.  69;  29  N.  E.  1049;  14 
L.  R.  A.  828.  When  a  person, 
for   his   own    profit,    suspended    a 


184       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

In  several  cases  the  liability  of  the  landowner  seems  to 
have  been  established,  partly  at  least,  on  the  ground  that 
the  act  of  the  contractor  in  rendering  the  sidewalk  unsafe 
was  in  violation  of  a  statute  or  ordinance.^^  Where  a 
building  is  being  constructed  on  a  city  lot  and  the  excava- 
tion in  the  sidewalk  is  not  protected  as  required  by  ordi- 
nance, the  owner  of  the  lot  is  liable  to  persons  injured  by 
falling  therein,  although  the  work  is  being  done  by  an  in- 
dependent contractor.^^  A  person  injured  by  falling 
through  a  wooden  trap-door  over  an  excavation  in  a  side- 
walk can,  where  such  coverings  are  prohibited  by  an  ordi- 
nance of  the  city,  recover  against  the  owner  of  the  premises, 
notwithstanding  the  fact  that  a  few  days  before  the  acci- 
dent such  owner  employed  a  carpenter,  who  was  an  inde- 
pendent contractor,  to  repair  the  door  and  the  negligence 
of  the  latter  contributed  to  the  accident.^^ 

On  the  other  hand,  it  has  been  held  that  a  landowner, 
who  makes  a  contract  with  another  person  to  provide  the 


lamp  over  a  sidewalk  and  per- 
mitted its  fastenings  to  become 
decayed,  so  that  it  was  knocked 
down  by  the  negligence  of  a  con- 
tractor in  repairing  it,  injuring  a 
foot  passenger,  he  could  not 
escape  payment  of  damages  on  the 
ground  that  the  contractor  was 
not  his  servant,  and  that  he  him- 
self has  been  guilty  of  no  per- 
sonal negligence.  Tarry  v.  Ashton 
(1876),  1  Q.  B.  D.  314.  See, 
also,  Gleeson  v.  Railroad  Co. 
(1890),  140  U.  S.  435;  11  Sup. 
Ct.  Rep.  859. 

^^  See  Sec.  69,  ante. 

'^Spence  v.  Schultz  (1894),  103 
Cal.  203;  27  Pac.  220;  Crenshaw 
V.  Uilman  (1893),  113  Mo.  633; 
20    S.    W.    1077;    Savannah,    etc., 


Railroad  v.  Phillips  (1892),  90 
Ga.  829;  17  S.  E.  82;  Lancaster 
v.  Insurance  Co.  (1887),  92  Mo. 
460;  5  S.  W.  23;  1  Amer.  St. 
Rep.  739;  Wood,  Mast.  &  S.,  pp. 
621-624;  Ketcham  v.  Newman 
(1894),  141  N.  Y.  205;  36  N.  E. 
197;  24  L.  R.  A.  102;  Smith  v. 
Traders  Exchange  (1895),  91 
Wise.  360;  64  N.  W.  1041;  51 
Amer.  St.  Rep.  912;  30  L.  R.  A. 
504;  Taylor,  etc.,  Railroad  v. 
Warner  (1895),  88  Tex.  Civ. 
App.  642;  31  S.  W.  66;  32  S.  W. 
868;  Hole  v.  Sittingeoukne  Rail- 
road Co.  (1851),  6  Hurl.  &  N. 
488;   7  Am.  Neg.  R.  157,  n. 

^' Barry  v.  Terkildsen  (1887), 
72  Cal  254;  13  Pac.  657;  1  Amer. 
St.  Rep.  55. 


EMPLOYER  S  EXCEPTIONAL   LLVBILITY. 


185 


materials  and  construct  a  sidewalk  in  front  of  his  premises, 
retaining  no  power  to  direct  the  manner  of  doing  the  work 
and  retaining  no  control  or  right  of  control  over  the  con- 
tractor in  the  performance  of  the  contract  in  any  respect, 
except  that  the  work  shall  be  in  compliance  with  the  con- 
tract, is  not  liable  for  an  injury  caused  by  stones  and  other 
obstructions  negligently  left  in  the  street  by  the  con- 
tractor.^^ So  also,  a  landowner  was  held  not  liable  to  a 
passerby  for  an  injury  caused  by  a  building  contractor's 
negligence  in  allowing  brick  and  mortar  to  fall  from  the 
wall.^^     In  an  early  Indiana  case  it  was  held  that  owners 


"Independence  v.  Slack  (1895), 
134  Mo.  66;  34  S.  W.  1094.  De- 
fendant, owning  city  property,  em- 
ployed F.  &  B.  on  terms  making 
them  independent  contractors  to 
build  a  cement  sidewalk  fronting 
her  property,  which  they  did. 
Sometime  thereafter  the  sidewalk 
broke  and  defendant  called  on 
them  to  repair  it,  without  pay, 
to  which  they  objected  but  which 
they  ultimately  did,  defendant 
giving  no  directions  except  to 
point  out  the  place  to  repair.  In 
repairing  it,  they  left  unguarded, 
unlighted  obstructions  on  the 
sidewalk,  and  plaintiflf,  passing 
along  at  night,  was  injured.  The 
court  instructed  the  jury  to  find 
against  the  defendant  and  for 
the  contractors.  On  appeal  the 
former  was  sustained  and  the 
judgment  in  favor  of  F.  &  B.  was 
reversed.  The  court  expressly 
follows  the  rule  in  Robbins  v. 
Chicago  (1866),  4  Wall.  (U.  S.), 
678;  Kaufman  v.  Rothwell 
(1908,  Tex.),  109  S.  W.  1089;  17 
L.    R.    A.     (N.    S.),    258,    citing 


inter  alia  Chesapeake,  etc.,  Co. 
V.  Alleghany  Co.  (1881),  57  Md. 
201;  40  Amer.  Rep.  430.  On  the 
other  hand,  an  abutting  owner 
for  whom  an  independent  con- 
tractor constructed  a  cement  side- 
walk, was  held  not  responsible 
for  the  latter's  negligence  in 
leaving  a  hole  in  the  planking 
that  he  placed  over  the  newly 
constructed  walk.  Massey  v. 
Oates  (1905),  143  Ala.  248;  39 
So.  142. 

"Pye  v.  Faxon  (1892),  156 
Mass.  471;  31  N.  E.  640.  The 
employer  was  held  not  to  be  re- 
sponsible where  a  servant  of  a 
contractor  or  a  subcontractor 
caused  injury  to  a  person  on  the 
adjacent  street  or  rightfully  on 
the  premises,  by  letting  fall  a 
brick.  Wolf  v.  American  Tract 
Society  (1893).  15  App.  Div.  98; 
49  N.  Y.  Supp.  236.  If  one  en- 
gages a  contractor  to  pump  water 
from  a  cellar,  and  the  lalter's 
servants  do  so  negligently,  where- 
by ice  is  formed  on  the  sidewalk, 
the  owner  is  not  liable  to  one  in- 


186       INDEPENDENT     CONTRACTORS     AND    THEIR    LIABILITY. 

of  the  building,  alongside  which  the  excavation  was  made, 
having  caused  the  work  to  be  done  by  virtue  of  a  license 
p-ranted  bv  the  city,  were  bound  to  use  every  reasonable 
care  that  such  privilege's  exercise  should  not  become  a 
nuisance  or  produce  injury,  failing  in  which  such  owner 
was  liable. 2^  In  a  later  case,  recovery  was  denied  for 
injury  received  by  a  person  falling  into  an  unguarded,  un- 
lighted  excavation  dug  under  a  footpath.  The  court  said 
the  earlier  doctrine  was  not  binding  because  the  question 
of  the  employer's  liability  for  the  contractor's  negligence 
was  not  really  involved,  the  action  being  by  the  former 
to  recover  from  the  latter,  damages  he  had  had  to  pay  the 
injured  person.^^ 

It  has  been  held  that  no  action  was  maintainable  where 
a   fence  built  around   an   excavation   in   the  sidewalk  was 


jured  l)y  falling  thereon.  Larow 
V.  Clute  (1891),  60  Hun,  580;  14 
N.  Y.   Supp.  616. 

=*  Silvers  v.   Nerdlinger    (1868), 
30  Ind.  53. 

*'Ryan  v.  Curran  (1878),  64 
Ind.  345;  31  Amer.  Rep.  123. 
"This  view  of  the  decision  is 
clearly  erroneous,  as  the  only 
ground  on  which  the  action  could 
be  maintained  is  that  the  em- 
ployer was  himself  primarily  liable 
for  the  negligence  of  the  con- 
tractor." Note  to  Jacobs  v. 
Fuller,  etc.,  Co.  (1902,  Ohio), 
in  68  L.  R.  A.  846;  13  Am.  Neg. 
R.  208.  Judge  Thompson  in  his 
Commentaries  on  Negligence  pro- 
nounces this  latter  Indiana  deci- 
sion as  "seemingly  unsound." 
Ryan  v.  Curran  has  been  followed 
in  Cummins  v.  City  of  Seymour 
(1881),  79  Ind.  491;  Wabash,  etc.. 
Railroad    v.    Farver    (1887),    111 


Ind.  195:  31  Am.  &  Eng.  R.  Cas. 
134;   Dooley  v.  Town  of  Sullivan 
(1887),    112    Ind.    451,    in    which 
the   former  holding  is  qualified  to 
the   extent  that   "it   is  quite   clear 
that   to   fasten   a   liability   on    the 
toi^'ii   it   must  be   shown  that  the 
work  was  intrinsically  dangerous, 
or  that  the   town   authorities   had 
notice    of    the    danger,    or    were 
negligent  in  not  acquiring  notice;" 
followed   in   City  of  Evansville  v. 
Senhenn    (1897).   151   Ind.  42;  47 
N.  E.  634;  51  N.  E.  83;  41  L.  R. 
A.   728;   68  Amer.   St.  Rep.  218; 
Park  v.  Board,  etc.   (1891),  3  Ind. 
App.  538;  30  N.  E.  147,  holding  a 
county  liable  as  to  a  bridge  ren- 
dered   defective    by    a   contractor, 
but  overruled  as  to  county's   lia- 
bility   in    Board,    etc.,    v.    Allman 
(1895),  142  Ind.  593;  Zimmerman 
v.  Baur  (1894),  11  Ind.  App.  607. 


employer's  excei^ional  liability. 


18i 


blown  down  and  struck  a  passerby;  the  court  saying- :  "'i'he 
structure  being  lawful,  all  the  acts  necessary  to  be  done  in 
completing  it  were  collateral  to  the  undertaking.  If  the 
fence  was  insufficient,  or  if  the  contractor  went  beyond  the 
permit  in  obstructing  the  street,  these  acts  are  to  be  charge- 
able to  the  persons  who  did  them."  ^^  Where  the  owner  of 
premises  having  occasion  to  construct  an  improvement  in 
his  cellar  which  is  required  by  the  board  of  health,  employs 
a  contractor,  who  is  bound  to  do  all  work  and  furnish  all 
materials,  the  employer  is  not  liable  for  injuries  to  a  pedes- 
trian from  colliding  with  a  barrel  placed  over  an  open  coal 
hole  in  the  sidewalk,  and  kept  there  by  the  contractor  to 
supply  necessary  ventilation  for  the  prosecution  of  the 
work.^^ 

Sec.  93.     Same,  Regarding-  Highways. 

The  rule  of  liability  for  safety  of  premises  extends  to 
the  protection  of  users  of  a  highway  against  defective  over- 
hanging structures. "^^  The  principle  of  holding  an  owner 
liable  for  work  dangerous  per  se,  has  often  been  applied 
so  as  to  charge  a  proprietor  with  liability  for  damages  to 
a  traveler  in  consequence  of  one  who  has  contracted  wdth 
the  proprietor  to  do  work  on  his  premises,  having  made  a 


**  Martin  v.  Tribune  Association 
(1883).  30  Hun  (N.  Y.),  291. 

"Maltbie  v.  Bolting  (1893).  6 
Misc.  339;  26  N.  Y.  Supp.  903. 
Lial)ility  of  the  employer  was  de- 
nied where  the  injury  was  caused 
by  a  truckman's  negligence  in  roll- 
ing barrels  out  of  his  employer's 
store.  Riedel  v.  Mo  ran.  etc.,  Co. 
(1894).  103  Mich.  262;  61  N.  W. 
509.  In  an  action  against  a  lot 
owner  for  personal  injuries  re- 
ceived   from    a   defect   in    a   side- 


walk, it  was  declared  that  the 
defendant  ought  to  be  allowed  to 
introduce  evidence  to  show  that 
independent  contractors  were  in 
possession  and  control  of  the 
premises,  and  that  the  defendant 
had  no  notice  of  the  defect. 
Ster  V.  Tuety  (1887).  45  Hun  (N. 
Y.).  49. 

'"Huff.  Agcy.,  2d  ed..  Sec.  225, 
citing  Tarry  v.  Ashton  (1876),  1 
Q.  B.  D.  314;  7  Am.  Neg.  R. 
157,  n. 


188       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

dangerous  excavation  in  the  street  and  failed  to  properly 
guard  the  same  for  the  protection  of  the  traveling  public, 
generally  on  the  principle  that  where  work  to  be  done  neces- 
sarily constitutes  an  obstruction  or  defect  in  the  street 
which  renders  it  dangerous  to  travelers,  unless  properly 
guarded  or  shut  off  from  public  use,  the  principal  for  whom 
the  work  is  done  can  not  defeat  a  just  claim  for  damages 
by  proving  that  the  work  which  constituted  the  defect  or 
obstruction  was  the  work  of  an  independent  contractor.'*^ 
If  the  contract  provides  for  doing  work  in  the  street  itself, 
such  as  making  water  and  sewer  connections  and  the  like, 
then  as  to  such  work  the  owner  may  be  liable.  ■*-     A  prop- 


"Robbins  v.  Chicago  (1866),  4 
Wall.  (U.  S.),  657,  678;  Chicago 
V.  Robbins  (1862),  2  Black  (U. 
S.),  418;  Baltimore  v.  O'Don- 
NELL  (1879),  53  Md.  110;  36 
Amer.  Rep.  395 ;  Circleville  v. 
Neuding  (1885),  41  Ohio  St.  465; 
Houston,  etc.,  Railroad  v.  Meador 
(1878),  50  Tex.  11;  Logansport 
V.  Dick  (1880),  70  Ind.  65;  36 
Amer.  Rep.  166;  Birmingham  v. 
McCrary  (1887).  84  Ala.  469;  4 
So.  630;  27  Cent.  L.  J.  598; 
Detroit  v.  Cory  (1861),  9  Mich. 
165;  80  Amer.  Dec.  1^\  Storrs 
V.  Utica  (1858),  17  N.  Y.  104; 
72  Amer.  Dec.  437;  Curtis  v. 
KiLEY  (1891),  153  Mass.  123;  26 
N.  E.  421;  Burd.  C.  Torts,  403; 
to  the  contrary.  Fuller  v.  Citizens 
Bank  (1882),  15  Fed.  875,  which 
Judge  Thompson  characterizes  as 
an  "ill-considered  case."  Thomps. 
Neg.,  Sec.  653,  note  25;  also  Cf., 
Moline  v.  McKinnie  (1888),  30 
Ills.  App.  419. 

*^Spence  v.  Schultz  (1894).  103 
Cal.  208;  37  Pac.  220;  Wiggin  v. 


St.  Louis  (1896),  135  AIo.  558; 
Zl  S.  W.  528;  Thomas  v.  Har- 
rington (1903),  72  N.  H.  45;  54 
Atl.  285;  65  L.  R.  A.  742;  16  Am. 
Neg.  R.  608,  n ;  Southern  Ohio 
Railroad  v.  Morey  (1890),  47 
Ohio  St.  207;  24  N.  E.  269;  7 
L.  R.  A.  701 ;  43  Am.  &  Eng.  R. 
Cas.  97;  Hawver  v.  Whalen 
(1892),  49  Ohio  St.  69;  29  N.  K 
1049 ;  14  L.  R.  A.  828 ;  McCarrier 
V.  HoLLisTER  (1903),  15  S.  Dak. 
366;  89  N.  W.  862;  91  Amer.  St. 
Rep.  695;  11  Amer.  Neg.  R.  641. 
That  the  proprietor  will  be  liable 
for  the  failure  of  his  contractor 
to  safeguard  an  excavation  in  a 
street,  see,  in  addition  to  the  fore- 
going cases.  Fisher  v.  Tryon 
(1898),  15  Ohio  C.  C.  541;  Mur- 
phy V.  Perlstein  (1902),  76  N. 
Y.  Supp.  657;  Ann  v.  Herter 
(1903).  79  N.  Y.  Supp.  825.  Let- 
ting work  which  involves  a 
dangerous  excavation  in  a  public 
highway  to  an  independent  con- 
tractor will  not  absolve  the  prin- 
cipal   from    liability    for    injuries 


EMPLOYER  S  EXCEPTIONAL   LIABILITY. 


189 


erty  owner  can  not  relieve  himself  from  liability  for  injuries 
to  a  traveler  on  a  highway  by  reason  of  the  negligent  failure 
to  guard  and  light,  after  dark,  a  trench  opened  in  the  high- 
way, to  connect  his  dwelling  with  the  street  water  main, 
by  employing  an  independent  contractor  to  do  the  work."*^ 
On  the  other  hand,  it  has  been  asserted  that  if  an  owner 
pursuant  to  a  building  contract  commits  the  entire  care 
and  control  of  the  premises  to  the  contractor,  he  will  not 
be  liable  to  a  traveler  injured  by  an  unguarded  excavation 
in  the  street.^* 

Where  an  owner  contracts  for  the  erection  or  repair  of 
a  building  upon  his  lot,  he  is  generally  held  not  liable  for 
the  acts  or  negligence  of  the  contractor  or  his  servants  in 
obstructing  the  street  or  in  permitting  objects  to  fall  into 
the  street  whereby  those  lawfully  using  the  street  are  in- 


to a  traveler,  caused  by  the  negli- 
gent act  of  the  contractor  in  fail- 
ing to  maintain  proper  guards. 
Cameron,  etc.,  Co.  v.  Anderson 
(1904),  98  Tex.  156;  81  S.  W. 
282;  1  L.  R.  A.  (N.  S.),  198;  16 
Am.  Neg.  R.  599,  608.  The  plain- 
tiff was  held  entitled  to  recover 
on  the  ground  that  the  ditches 
which  caused  his  injuries  had 
been  left  open  and  unguarded  by 
the  contractor.  Baxter  v.  Warner 
(1876),  6  Hun  (N.  Y.),  585.  Cf., 
Blake  v.  Ferris  (1851),  5  N.  Y. 
48;  55  Amer.  Dec.  304;  Storrs  v. 
Utica  (1858).  17  N.  Y.  104;  72 
Am.  Dec.  437. 

"Thom.xs  v.  Harrington 
(1903),  n  N.  H.  45;  54  Atl.  285; 
65  L.  R.  A.  742;  16  Am.  Neg.  R. 
608,  n. 

"Allen    V.    Willard    (186S),    57 


Pa.  St.  374;  Erie  v.  Caulkins 
(1877),  85  Pa.  St.  247;  27  Amer. 
Rep.  642;  Scammon  v.  Chicago 
(1861),  25  Ills.  424;  79  Amer. 
Dec.  334;  14  Am.  Neg.  Cas.  418, 
n. ;  Pfau  v.  Williamson  (1873), 
63  Ills.  16;  Ryder  v.  Thomas 
(1878),  13  Hun  (N.  Y.),  296. 
Contra,  Chicago  v.  Robbins 
(1S62),  2  Black  (U.  S.),  418; 
Robbins  v.  Chicago  (1866).  4 
Wall.  (U.  S.).  557.  In  the  ab- 
sence of  an  e.xpre.ss  or  implied 
authorization,  one  who  employs  a 
contractor  to  repair  a  levee  near 
a  highway  does  not  become  re- 
sponsible for  an  injury  caused  by 
an  excavation  made  in  the  high- 
way by  removing  dirt  tlierefrom. 
Andrews  v.  Runyon  (1834),  65 
Cal.  629;  4  Pac.  669.  For  addi- 
tional cases,  see  65  L.  R.  A.  652. 


190       INDEPENDENT    CONTRACTORS    AND    TJIEIR    LIABILITY. 

jiired.-'"'''  Thus,  a  landowner  employing  a  carpenter  at  a 
given  price  to  alter  a  building  and  to  furnish  all  material 
therefor,  is  not  liable  to  a  third  person  injured  by  driving 
on  material  deposited  on  the  highway  adjoining  tlie  land 
by  the  contractor's  teamster,  intended  for  use  in  making 
the  alterations.^^  A  landowner  is  not  liable  for  an  injury 
to  a  passerby  caused  by  a  plank,  attached  to  a  scaffolding 
by  a  roofer,  being  blown  down  by  the  wind.^'  Persons 
employed  to  build  a  railway  for  a  street  car  company  negli- 
gently stretched  a  wire  rope  across  a  street,  the  manner  of 
doing  the  work  having  been  left  to  such  persons,  and  the 
company  was  held  not  liable.*^ 


^"Frassi  v.  McDonald  (1898), 
122  Cal.  400;  55  Pac.  139;  Hoff 
V.  Shockley  (1904),  122  Iowa, 
720;  98  N.  W.  573;  101  Amer.  St. 
Rep.  289;  64  L.  R.  A.  538;  16 
Amer.Neg.  R.  607,  n;  Strauss  v. 
Louisville  (1900),  108  Ky.  155: 
55  S.  W.  1075,  where  plamtiff  was 
injured  by  the  contractor's  servant 
throwing  a  piece  of  lime  into  a 
mortar  bed  placed  in  the  street. 
BooMEK  V.  Wilbur  (1899),  176 
Mass.  482;  57  N.  E.  1004;  53  L. 
R.  A.  172;  8  Amer.  Neg.  R.  245; 
Emmerson  v.  Fay  (1896),  94  Va. 
60;  26  S.  E.  386;  Richmond  v. 
SiTTERDixG  (1903),  101  Va.  354; 
43  S.  E.  562;  99  Amer.  St.  Rep. 
879;  65  L.  R.  A.  445;  16  Am. 
Neg.  R.  609,  n. ;   Smith  v.   Mil- 

V/AUKEE,    ETC.,    EXCHANGE     (1905), 

91  Wise.  360;  64  N.  W.  1041;  51 
Amer.  St.  Rep.  912;  30  L.  R.  A. 
504. 

'•  HlLUARD  V.  Richardson 
(1855),  3  Gray,  349;  63  Amer. 
Dec.  743.  The  owner  of  land 
who  employs  an  independent  con- 


tractor to  erect  or  repair  a  build- 
ing on  his  lot,  is  not  liable  for 
injuries  resulting  from  the  con- 
tractor's deposit  of  planks  in  the 
highway  or  other  negligence  on 
the  part  of  the  contractor  or  his 
servants.  McCarthy  v.  Second 
P.VRiSH  (1880).  71  Me.  318;  36 
Amer.  Rep.  320;  Forsyth  v. 
Hooper  (1865),  11  Allen  (Mass.), 
419;  Pearson  v.  Cox  (1877),  2 
C.  P.  Div,  369,  cited  in  Tiff.  Dom. 
Rels..  510.  The  employer  is  not 
liable  to  tliird  persons  for  injuries 
to  one  coming  in  contact  with 
timbers  dragged  through  the 
streets  by  an  independent  con- 
tractor, to  be  used  in  erecting  a 
building.  Doran  v.  Flood  (1891). 
47  Fed.  543. 

"Hexamer  v.  Webb  (1896),  101 
N.  Y.  377;  54  Amer.  Rep.  703;  4 
N.  E.  755. 

■**  Sanford  v.  Pawtucket  St.  R. 
Co.  (1896),  19  R.  I.  537;  35  Atl. 
67;  33  L.  R.  A.  564;  4  Amer.  & 
Eng.  Railroad  Cas.  (N.  S.),  318. 
Where    a   proprietor    of    a    house 


employer's   exceptional    LLVBILITV 


191 


Sec.  94.     Same,  Removing  Condemned  Building's. 

Whether  a  landowner,  notified  by  pubhc  authorities  to 
remove  a  condemned  buikb'ng,  can  reheve  himself  from 
liability  for  improperly  doing  so  by  engaging  a  third  person 
to  do  it,  is  variously  decided."*''  A  property  owner,  who 
had  been  ordered  by  the  inspector  of  buildings  to  remove 
the  walls  of  a  ruined  building,  as  a  nuisance  to  the  public 
as  well  as  to  adjoining  property,  let  the  job  of  removal  to 
an  independent  contractor  who  had  agreed  to  save  the 
owner  harmless  for  injuries  done  to  others  in  the  per- 
formance of  the  contract.  Plaintiff  was  injured  through 
the  negligence  of  the  contractor  and  his  servants.  The 
court  held  the  owner  liable  for  the  injury  on  the  ground 
that  "the  doing  of  the  work  necessarily  involved  danger 
to  others,  unless  great  care  was  used,  and  the  injury  re- 
sulted from  negligence  in  doing  the  work.  It  was  not  col- 
lateral to  the  employment,  as  would  have  been  the  case, 
had  a  servant  of  the  contractor,  while  at  work,  negligently 


contracted  with  a  builder  to  ex- 
ecute certain  repairs  and  the 
builder  made  a  subcontract  for 
the  plaster  work,  it  was  held  that 
neither  the  proprietor  nor  the 
the  principal  contractor  was  liable 
for  injuries  caused  bj^  the  up- 
setting of  a  vehicle  which  resulted 
from  the  negligence  of  'the  sub- 
contractor in  leaving  a  heap  of 
lime  in  the  street,  without  any 
fence  or  protection,  outside  the 
space  which  had  been  duly  set 
apart,  fenced  in  and  lighted  by 
the  principal  contractor,  in  ac- 
cordance with  the  provisions  of 
a  police  act.  McLean  v.  Russell 
(1850).  12  Scotch  Sess.  Cas.,  2d 
series,  887.     See,  also,   Reagan  v. 


Casey  (1894),  160  Mass.  374;  36 
N.  E.  58.  A  railroad  company 
was  held  liable  for  injuries  caused 
by  an  obstruction  erected  in  the 
highway  by  a  contractor  engaged 
in  constructing  the  road,  in  Dem- 
ing  V.  Terminal  R.  Co.  (1900), 
63  N.  Y.   Supp.  615. 

^  That  he  may,  see  Earl  v 
Beadleston  (1877),  10  Jones  & 
S.  (N.  Y.),  294;  Butler  v.  Hunter 
(1862),  7  Hurl.  &  N.  825;  8  Am. 
Neg.  R.  301,  n.  Contra,  Brown 
V.  Werner  (1873).  40  Md.  15: 
Bower  v.  Peate  (1876),  1  Q.  B. 
D.  321 ;  11  Am.  Neg.  R.  645.  See, 
also,  Dillon  v.  Hunt  (1884),  82 
Mo.   150. 


192       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

let  fall  a  brick  upon  a  person  passing  by."  And  in  reply- 
to  the  argument  that  it  is  "unreasonable  that  one  who  has 
work  to  perform,  that  he  himself  can  not  perform  from 
want  of  knowledge  or  skill,  should  be  held  liable  for  the 
negligence  of  one  whom  he  employed  to  do  it,  since,  if  he 
did  reserve  control,  it  would  avail  nothing,  from  his  own 
want  of  knowledge  and  skill,"  the  court  said :  "There  is 
seeming  force  in  this,  but  only  so.  It  is  not  agreeable  to 
the  principles  of  distributive  justice;  for  it  is  equally  a 
hardship  that  one  should  suffer  loss  by  the  negligent  per- 
formance of  work  that  another  procured  to  be  done  for  his 
own  benefit,  and  which  he  in  no  way  promoted,  and  over 
which  he  had  no  control.  Hence,  where  work  is  to  be 
done  that  may  endanger  others,  there  is  no  real  hardship 
in  holding  the  party,  for  whom  it  is  done,  responsible  for 
neglect  in  doing  it.  Though  he  may  not  be  able  to  do  it 
himself,  or  intelligently  supervise  it,  he  will  nevertheless 
be  the  more  careful  in  selecting  an  agent  to  act  for  him. 
This  is  a  dutv  which  arises  in  all  cases  where  an  agent  is 
employed,  and  no  harm  can  come  from  stimulating  its 
exercise  in  the  employment  of  an  independent  contractor 
where  the  rights  of  others  are  concerned."  ^" 

But  upon  the  sale  of  a  house  standing  upon  the  vendor's 
land  to  a  suitable  person  for  the  purpose  of  removing  same 
within  a  reasonable  time,  and  surrendering  possession  and 
control  thereof  to  such  vendee,  the  house  itself  being  in  a 
safe  condition  capable  of  being  removed  without  danger  to 
anyone,  neither  the  vendee  nor  his  agents  while  engaged 
in  moving  the  property  sold  are  the  vendor's  servants  for 
whose  careless  conduct  the  vendor  can  be  held  liable  under 
the  doctrine  of  respondeat  snperior.^^ 

'"Covington  v.  Steinbrock  "Wilmotv.  McPadden  (1906), 

(1899),  61  Oho  St.  215;  55  N.  E.  76  Conn.  357;  65  Atl.  157;  19  L. 

618;    76   Amer.    St.    Rep.    375;    7  R.  A.   (N.  S.),  1101. 
Am.  Neg.  R.  154. 


EMPLOYER  S   EXCEPTIONAL   LLVBILITY. 


193 


Sec.  C5.     Same,  as  to  Adjoining  Owners. 

The  decisions  as  to  the  habihty  of  property  owners  to 
adjoining  owners  due  to  work  being  done  upon  or  in  con- 
nection with  the  property  of  the  former  owners  by  inde- 
pendent contractors  or  their  servants,  are  at  great  variance 
with  each  other,  and  no  general  rule  as  to  this  particular 
relation  may  safely  be  asserted.  On  the  one  hand,  it  is 
stated  by  Judge  Thompson :  "''-  "One  who  is  causing  a 
building  to  be  erected  on  his  own  lands,  stands  under  the 
legal  duty  of  supporting  the  land  or  building  (quaere F) 
of  his  neighbor,  or  voluntarily  assumes  that  duty,  and  if 
he  negligently  fails  to  perform  it,  so  that  the  land  caves  in 
or  the  building  falls  down,  he  must  answer  in  damages  to 
its  proprietor,  altliough  he  may  have  committed  the  work 
to  an  independent  contractor  and  left  him  to  his  own 
method/''"^  The  employment  of  an  independent  contractor  to 
make  an  excavation  adjoining  the  premises  of  another  does 
not  relieve  the  proprietor  from  the  obligation  to  take  rea- 
sonable precautions  to  prevent  injury  to  his  adjoining  pro- 
prietor." ^"*     Where  the  walls  of  a  building  were  left   in 


*'  Thomps.  Neg.,  Sec.  654. 

•"Citing  Bower  v.  Peate  (1876), 
1  Q.  B.  D.  321;  11  Am.  Ncg.  R. 
645;  Cohen  v.  Simmons  (1892), 
66  Hun  (N.  Y.).  634;  21  N.  Y. 
Siipp.  335;  Larson  v.  Metropoli- 
tan Street  Railroad  (1892),  110 
Mo.  234;  19  S.  W.  416;  16  L.  R. 
A.  330;  45  Alb.  Law.  J.  514;  34 
Cent.  Law  J.  513;  33  Amer.  St. 
Rep.  439. 

"Citing  Samuel  v.  Novak 
(1904),  99  Md.  558;  58  Atl.  19; 
D.\vis  V.  Summerfield  (1903), 
133  N.  C.  325;  45  S.  E.  654;  63 
L.  R.  A.  492;  92  Amer.  St.  Rep. 
781 ;  16  Am.  Neg.  R.  611,  n.,  hold- 


ing plaintiff  entitled  to  notice. 
Where  a  contractor,  to  whom  had 
been  intrusted  the  work  of  re- 
building a  tenement  in  which  a 
prescriptive  easement  of  lateral 
support  had  been  acquired  by  the 
owner  of  the  adjoining  tenement, 
executed  the  work  so  negligently 
as  to  cause  the  subsidence  of  an 
arcli  in  the  vault  of  the  latter 
tenement  and  a  bulging  of  the 
walls  of  the  vault,  the  owner  was 
held  liable.  LeMaitre  v.  Davis 
(1881),  L.  R..  19  Ch.  Div.  281. 
It  is  error  to  instruct  that  one 
who  contracts  for  the  erection 
of    a   building    is    not    responsible 


194       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


a  dangerous  condition  by  a  fire,  and  the  owner  employed  a 
contractor  to  take  them  down,  and  in  consequence  of  his 
negligence  in  doing  the  work  the  walls  fell  on  adjoining 
property,  the  owner  was  held  liable  on  the  ground  that 
"When  a  party  is  under  a  duty  to  the  public  or  a  third 
person  to  see  that  work  he  is  about  to  do  or  have  done  is 
carefully  performed,  so  as  to  avoid  injury  to  others,  he  can 
not.  by  letting  it  to  a  contractor,  avoid  his  liability,  in  case 
it  is  negligently  done  to  the  injury  of  another."  ^^  A  land- 
owner was  held  liable  for  the  negligence  of  a  contractor 
in  permitting  fire  to  escape  to  adjacent  lands  from  lands 
which  he  had  contracted  to  clear  and  make  ready  for  the 
plow,  where  such  negligence  flowed  directly  from  the  acts 
which  the  contractor  agreed  to  do  and  was  by  the  land- 


where  the  work  has  been  let  to  a 
contractor  although  he  may  have 
told  such  contractor  to  make  the 
building  a  certain  width,  render- 
ing it  necessary  to  encroach  on 
adjoining  premises  to  excavate 
for  the  foundation;  the  owner  is 
bound  to  know  the  width  of  h;s 
lot,  and  if  he  becomes  a  party  to 
any  encroachment  upon  his  neigh- 
bor's premises  whereby,  as  here, 
his  neighbor's  house  is  injured  or 
destroyed,  he  is  a  co-trespasser 
and  is  as  responsible  as  though 
he  himself  made  the  excavation. 
Williamson  v.  Fisher  (1872),  52 
Mo.  198.  "Perhaps  the  exception 
is  even  broader  than  this.  In  one 
case  it  is  stated,  by  way  of  dic- 
tum, to  be  this:  'If  a  contractor 
faithfully  performs  his  contract, 
and  a  third  person  is  injured  by 
the  contractor,  in  tlie  course  of 
its  due  performance,  or  by  its 
result,  the  employer  is  liable,  for 


he  causes  the  precise  act  to  be 
done  which  occasions  the  in- 
jury.'" Huff.  Agcy.,  2d  ed.,  Sec. 
220,  citing  Lawrence  v.  Shipman 
(1873),  39  Conn.  586. 

°°  Covington,  etc.,  Co.  v.  Stein- 
brock  (1899),  61  Ohio  St.  215, 
223;  55  N.  E.  618;  76  Amer.  St. 
Rep.  375;  7  Am.  Neg.  R.  154. 
Cf.,  Duer  v.  Consolidated  Gas 
Co.  (1903),  86  App.  Div.  (N.  Y.), 
14;  38  N.  Y.  Supp.  714.  Where 
the  owner  of  a  house  which  has 
been  burned  leaves  the  walls 
thereof  standing  in  an  unsafe  and 
tottering  condition,  he  is  liable  to 
an  adjoining  owner  for  damages 
caused  by  its  fall  on  the  latter's 
building,  and  it  is  no  defense 
that  the  premises  were  in  the  sole 
charge  of  a  skillful  contractor 
under  contract  to  rebuild  the 
house.  Sessengut  v.  Posey 
(1879),  67  Ind.  408;  33  Amer. 
Rep.  98.     See  Sec.  92,  note  28. 


EMPLOYER  S   EXCEPTIONAL   LLVBILITY. 


195 


owner  authorized  to  do.  and  which  was  the  natural  and 
probable  consequence  of  the  performance  of  the  work  in 
the  manner  agreed  upon/'"  Where  a  property  owner  em- 
ployed a  contractor  to  blast  within  a  few  feet  of  the  house 
of  an  adjoining  owner  and  took  no  precautions  against 
resulting  injuries,  the  proprietor  was  held  liable/''^ 


^Cameron  v.  Oberlin  (1897), 
19  Ind.  App.  142;  48  N.  E.  386. 
If  a  proprietor  employs  a  con- 
tractor to  construct  a  drain  from 
his  cellar  into  the  common  sewer 
in  the  street,  through  a  plank 
barrier  beneath  the  surface  of  the 
street,  which  surrounds  the  block 
of  buildings  in  which  the  cellar 
is  situated,  and  the  work  is  so 
negligently  and  improperly  done 
that,  after  it  is  finished,  tide  water 
flows  through  the  opening  made 
in  the  barrier  into  the  plaintiffs 
cellar,  the  proprietor  employing 
the  contractor  to  do  the  work  is 
liable  for  the  damages  thereby  in- 
flicted upon  the  plaintiff;  in  the 
view  of  the  court,  the  doctrine  oi 
independent  contractor  does  not 
apply  to  such  a  case;  "but  where 
the  thing  contracted  to  be  done, 
from  its  nature,  creates  a  nuisance, 
or  where,  being  improperly  done, 
it  creates  a  nuisance  and  causes 
mischief  to  a  third  person,  the  em- 
ployer is  liable  for  it."  Sturges 
V.  Theological,  etc..  Society 
(1881),  130  Mass.  414;  39  Amcr. 
Rep.  463.  An  abutting  owner  who 
obtains  from  the  city  authority  to 
grade  the  street,  and  contracts 
with  an  independent  contractor 
to  grade  such  street,  and  his  lots, 
was  held   liable   for  the   dumping 


into  a  ravine  by  the  contractor, 
with  his  knowledge  and  procure- 
ment, of  mud  and  quicksand 
which  overflowed  another's  land 
several  hundred  feet  distant,  al- 
though permission  was  obtained 
of  the  intervening  owners  to  over- 
flow their  lots.  Koch  v.  Sackman, 
etc.,  Co.  (1894),  9  Wash.  405;  37 
Pac.  703.  Where  the  owner  of 
shore  land  contracted  with  an- 
other to  dredge  in  front  of  it  and 
deposit  the  dredging  on  the  rear, 
and  failed  to  provide  means  to 
prevent  it  from  sliding  on  to  the 
land  of  an  adjoining  owner,  he 
was  held  liable.  Braisted  v. 
Brooklyn,  etc.,  R.  Co.  (1899),  61 
N.  Y.  Supp.  674. 

"  Wetherbee  v.  P.\rtridge 
(1899),  175  Mass.  185;  55  N.  E. 
894;  78  Amer.  St.  Rep.  486. 
WHiere  defendant's  contractor,  in 
working  on  his  building  negli- 
gently raised  excessive  dust,  broke 
into  a  chimney  throwing  soot  and 
rubbish  down  it  so  as  unneces- 
sarily to  damage  the  business  and 
goods  of  the  occupant  of  the  ad- 
joining premises,  the  plaintiff  was 
held  entitled  to  recover.  Cameron 
v.  Eraser  (1881).  9  Sc.  Sess.  Cas., 
4th  series,  26,  a  somewhat  doubt- 
ful decision. 


196       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


On  the  other  hand,  it  is  said  that,  if  in  a  building  con- 
tract, the  excavating  is  so  negligently  done  as  to  injure 
adjoining  premises,  the  owner  is  not  liable,  if  the  plans, 
etc.,  furnished  the  contractor  are  sufficient  to  secure  a  safe 
construction  of  the  building  and  the  erection  of  the  build- 
ing was  not  naturally  dangerous  to  adjoining  property.^^ 
Persons  contracting  for  the  erection  of  buildings  have  been 
held  not  responsible  where  the  excavation  for  the  building 
was  so  negligently  made  as  to  injure  a  building  on  the  ad- 
joining land.^^  If  a  carpenter  is  employed  at  a  stated 
price  to  repair  a  house,  furnishing  all  material  and  labor, 
and  the  house  falls  down  through  the  negligence  or  un- 
skillfulness  of  the  contractor,  to  the  injury  of  another's 
property,  the  employer,  it  is  held,  is  not  answerable.^^ 

"In  dealing  with  this  subject,  it  should  be  kept  carefully 
in  view  that  a  proprietor  who  employs  an  independent  con- 
tractor to  work  on  his  land  is  not  at  all  liable  for  any  tres- 


^  Crenshaw  v.  Ullman  (1893), 
113  Mo.  633;  20  S.  W.  1077. 

■*  Aston  V.  Nolan  (1883),  63  Cal. 
269;  Crenshaw  v.  UHman,  supra; 
Harrison  v.  Kiscr  (1887),  79  Ga. 
588;  4  S.  E.  320.  A  landowner 
is  not  answerable  where  a  sub- 
contractor so  carelessly  executed 
a  contract  for  the  removal  of  cer- 
tain earth  and  rock  from  the  de- 
fendant's vacant  lot  that  a  stable 
belonghig  to  an  adjoining  land- 
owner was  injured.  King  v. 
Livermore  (1876),  9  Hun  (N. 
Y.),  298,  affirmed  (1877),  71  N. 
Y.  605. 

•^  Connors  V.  Hennessey  (1873), 
112  Mass.  96.  Liability  has  been 
denied  in  a  case  where  a  pile  of 
lumber  was  so  negligently  erected 
by  a  contractor  that  it  toppled 
over   and    fell    into    an    adjoining 


lot,  thereby  causing  a  man's  death. 
Andrews  v.  Boedecker  (1885),  17 
Ills.  App.  213;  9  Amer.  St.  Rep. 
649.  In  a  case  where  the  work- 
men of  one  who  had  contracted 
with  the  defendant  to  erect  a 
building  carried  away  some  bricks 
and  other  materials  belonging  to 
the  buildings  of  a  person  who 
owned  the  adjacent  land,  it  was 
held  error  to  instruct  the  jury 
that  if  they  were  "of  the  opinion 
that  the  workmen  while  they  were 
on  the  land  by  the  defendant's 
permission,  had  from  the  want  of 
due  care  injured  the  plaintiff's 
property,  or  had  carried  away  the 
plaintiff's  materials,  the  defendant 
would  be  liable  for  those  acts." 
Gayford  v.  Nicholls  (1854),  9 
Exch.  702. 


employer's  exceptional  ll\bility,  197 

passes  upon  the  property  of  others  which  the  contractor 
may  permit  in  doing  the  work,  on  the  theory  of  respondeat 
superior;  since  the  contractor  is  neither  his  agent  nor  his 
servant  in  the  sense  of  this  rule.  The  mere  fact  then  that 
the  independent  contractor  commits  such  a  trespass  while 
acting  within,  what  might  be  called,  the  scope  of  his  em- 
ployment (i.  e.,  while  acting  in  carrying  out  the  contract), 
does  not  at  all  tend  to  charge  the  proprietor  with  liability, 
unless  the  contract  expressly  or  by  fair  implication,  author- 
izes the  contractor  to  commit  the  trespass."  °^ 

Sec.  96.     Same,  Condition  of  Premises,  Generally. 

If  owners  are  charged  with  the  duty  of  keeping  premises, 
such  as  a  mine,  safe,  they  are  liable  though  independent 
contractors  are  to  employ  such  premises  (in  this  instance, 
to  take  out  the  ore.^'-  For  a  discussion  of  the  liability  of 
the  owner  of  premises  for  damages  resulting  from  a  so-called 
"attractive  nuisance"  (analogous  to  the  turn-table  cases) 
created  by  the  independent  contractor,  see  the  recent  case 
cited  below.^'"^ 

Sec.  87.     Same,  Duty  to  Supervise. 

Judge  Thompson  declares :  'Tt  has  been  well  laid  down 
that,  if  the  building  of  a  house  is  split  up  into  several  differ- 
ent contracts,  and  the  owner  undertakes  to  supply  the  ma- 
terials and  no  provision  is  made  for  the  supervision  of  the 
work,  or  for  maintaining  guards,  the  duty  of  protecting 
the  public  remains  on  the  owner."  °^     The  duty  of  an  em- 

"^  Davison  v.   Shanahan    (1S92),  '='Wilmot  v.  McPadden  (1906), 

93    Mich.    486;    53    N.    W.    624;  78   Conn.   276;    61    Atl.    1069;    79 

Andrews    v.    Runyon    (1834),    65  Conn.  367;  65  Atl.  157,  and  note 

Cal.  629;  4  Pac.  669.  thereto  in   19  L.   R.   A.    (N.   S.), 

•"Lake    Superior,    etc.,    Co.    v.  \094,  ct  scq. 

Erickson    (1878),  39   Mich.  492;  "  Thonip.  Neg..  Sec.  657,  citirg 

33     Amer.     Rep.    423;     Kelly    v.  Homan    v.    Stanley    (1870),    66 

Howell  (1884),  41  Ohio  St.  438.  Pa.  St.  464;  5  Amer.  Rep.  3S9. 


198       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

ployer  to  supervise  the  work  being  done  under  an  inde- 
pendent contract  is  sometimes  predicated  specifically  with 
respect  to  work  which  involves  the  performance  of  absolute 
duties  incumbent  on  the  employer.^'^  The  existence  of  the 
duty  of  supervision  is  occasionally  inferred  from  the  terms 
of  some  statutory  provision  which  regulates  the  performance 
of  the  work  in  question.^"  The  duty  in  question  may  be 
the  result,  express  or  implied,  of  the  contract  itself;  thus, 
on  the  ground  that  it  was  provided  in  the  contract  for  the 
erection  of  a  building  that  partitions,  etc.,  were  to  be  taken 
down  or  filled  up  as  might  be  required  and  anchored  where 
directed,  it  was  held  that  the  directions  were  to  be  given  by 
the  owners.^ ^ 

That  an  employer  is  not  bound  to  supervise  the  progress 
of  work  contracted  to  be  done  for  him  by  an  independent 
contractor,  for  the  purpose  of  preventing  the  commission 
of  collateral  torts  by  either  the  contractor  or  his  servants, 
has  been  frequently  declared.'''^  "The  doctrine  relieving 
the  employer  from  the  necessity  of  supervising  the  work 


■^O'Brien  v.  Board,  etc.  (1880), 
6  Vict.  L.  Rep.  204;  Williams  v. 
Tripp   (1878),  11  R.  I.  447. 

"•"Chicago  V.  Dermody  (1871), 
61  Ills.  431;  14  Am.  Neg.  Cas. 
418,  n. ;  Anderson  v.  Fleming 
(1903),  160  Ind.  597;  61  N.  E. 
443;  66  L.  R.  A.  119;  16  Am.  Neg. 
R.  606,  n.  It  is  clear  that  in  cer- 
tain cases  the  law  virtually  de- 
clares that  the  employer  must,  at 
his  peril,  see  that  the  work  is 
executed  with  reasonable  care. 
Hole  v.  Sittingbourne,  etc.,  R. 
(1861),  6  Hurls.  &  N.  488,  per 
Pollock,  B. ;  Dalton  v.  Angus 
(1881),  L.  R.,  App.  Cas.  829,  per 
Blackburn,  J. 


"'  LA^•cASTER  V.  Connecticut, 
ETC.,  Co.  (1887),  92  Mo.  1 ;  5  S. 
W.  23;  1  Amer.  St.  Rep.  739. 

*"*  Braidwood  v.  Bonnington,  etc., 
Co.  (1866),  2  Scot.  L.  Rep.  152, 
in  which  the  defendants  were  held 
not  liable  for  the  negligent  super- 
vision of  an  inspector  whom  the 
defendant  employers  had  sent; 
Woods  V.  Trinity  Parish  (1893), 
21  D.  C.  540,  where  a  contractor 
left  a  shutter  in  a  church  tower 
insecure  and  the  society  was  ex- 
cused ;  Aldritt  v.  Gillette,  etc.,  Co. 
(1902),  85  Minn.  206;  88  N.  W. 
741,  case  of  a  subcontractor; 
Hawke  v.  Brown  (1898),  28  App. 
Div.  (N.  Y.),  37;  50  N.  Y.  Supp. 


employer's  exceptional  liability. 


199 


may  be  regarded  as  one  which  is  deducible  directly  from 
the  legal  conception  of  an  independent  contractor,  as  being 
essentially  a  person,  who,  ex  hypothesi,  is  entitled  to  exer- 
cise his  own  discretion  with  regard  to  the  manner  in  which 
the  restdts  which  lie  has  undertaken  to  produce  shall  be 
achieved;  or  it  may  be  put  upon  the  ground  that  the  em- 
ployer is  entitled  to  act  upon  the  presumption  that  a  con- 
tractor, who  has  been  carefully  selected,  will  exercise 
reasonable  skill  and  prudence  in  executing  the  stipulated 
work."  «^ 

Sec.  98.     Same,  Duties  as  to  Invitees. 

If  the  ow-ner  of  property  contracts  for  work  to  be  done 
upon  it,  he  is,  as  to  invitees,  bound  to  keep  the  premises 
in   a   safe   condition   and   can   not   excuse   himself  on   the 


1032,  holding  there  was  no  duty 
to  employ  a  supervising  archi- 
tect; Boardman  v.  Creighton 
(1901).  95  Me.  154;  49  Atl.  363, 
that  an  emploj'er  is  not  to  be 
held  liable  simply  by  alleging  it 
was  his  duty  to  examine  the 
work  from  time  to  time.  Through 
a  subcontractor's  negligence,  water 
flowed  into  plaintiff's  cellar.  The 
court  held  that  the  principal  con- 
tractor was  not  liable  as  he  was 
under  no  obligation  by  his  con- 
tract to  give  any  direction  as  to 
this  portion  of  the  work,  and  had 
no  control  or  authority  over  the 
mode  or  manner  of  its  perform 
ance  but  only  a  right  to  insist 
generally  that  the  work  be  done 
according  to  the  terms  of  the  con- 


tract.  Slater  v.  Mersereau  (1876), 
64  N.  Y.  138. 

^  Note  to  Salliotte  v.  King, 
ETC.,  Co.  (1903).  58  C.  C.  A.  466; 
122  Fed.  378,  in  65  L.  R.  A.  620, 
636.  The  presumption  is  that 
"directions  were  given  to  do  the 
work  in  the  ordinary  way,  and  to 
take  all  the  proper  precautions 
not  to  cause  any  mischief."  Pol- 
lock, C.  B.,  in  Butler  v.  Hunter 
(1862),  7  Hurl.  &  N.  826.  To  the 
same  effect,  Eaton  v.  European, 
ETC.,  R.  (1871),  59  Me.  520;  8 
Amer.  Rep.  430;  Carter  v.  Berlin 
Mills  (1876),  58  N.  H.  52;  42 
Amer.  Rep.  572;  City  of  Inde- 
pendence v.  Slack  (1895),  134 
Mo.  66 ;  34  S.  W.  1094. 


200       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sfronnd  that  the  work  is  under  the  exclusive  control  of  a 
contractor.'^  When  the  owner  of  premises,  which  are 
under  his  control,  employs  an  independent  contractor  to  do 
work  upon  them,  which  from  its  nature,  is  likely  to  render 
the  premises  dangerous  to  persons  who  may  come  upon 
them  by  the  invitation  of  the  owner,  the  owner  is  not  re- 
lieved, by  reason  of  the  contract,  from  the  obligation  of 
seeing  that  due  care  is  used  to  protect  such  persons.  The 
owner  can  not  continue  to  hold  out  the  invitation  without 
being  bound  to  exercise  due  care  in  keeping  the  premises 
reasonably  safe  for  use  according  to  the  invitation.''^ 

Sec.  99.     Same,  Furnishing  Appliances. 

A  propriet6r,  who  engages  with  a  contractor  to  paint  his 
building,  the  proprietor  to  furnish  the  staging  for  that 
purpose,  is  under  an  implied  warranty  to  furnish  a  safe 
staging  for  that  purpose;  and  if  the  staging  breaks,  injur- 
ing the  contractor  or  his  servants,  the  proprietor  must  pay 
damages,  notwithstanding  the  staging  was  built  for  him  by 


'"Huff.  Agcy.,  2d  ed.,  Sec.  225, 
citing  Curtis  v.  Kiley  (1891), 
153  Mass.  123;  23  N.  E.  421; 
Burd.  Cas.  Torts,  403;  Coughtry 
V.  Globe  Woolen  Co.  (1874),  56 
N.  Y.  124;  15  Amer.  Rep.  387. 
Cf.,  Stewart  v.  Putnam  (1879), 
127  Mass.  403;  Sturges  v.  Theo- 
logical, ETC.,  Society  (1831),  130 
Mass.  414;  39  Amer.  Rep.  463; 
Woodman  v.  Metropolitan  Rail- 
road (188?),  149  Mass.  335;  21 
N.  E.  482;  4  L.  R.  A.  213;  14 
Amer.  St.  Rep.  427;  6  Rail.  & 
Corp.  Law  J.  72;  12  Am.  Neg. 
Cas.  80. 

"  Curtis  v.   Kiley,   supra.     On 


the  ground  that  the  operations 
contemplated  were  not  such  as 
necessarily  involved  injury  to 
visitors,  it  was  held  that  the 
owner  of  a  pleasure  resort  and 
street  railway  leading  to  it,  did 
not,  by  leasing  the  privilege  of 
operating  a  switchback  railway 
at  the  resort,  and  advertising  it 
as  one  of  the  attractions  of  the 
place,  become  an  insurer  against 
accidents  to  persons  patronizing 
the  lessee,  or  become  liable  for 
his  carelessness.  Knottnerus  v. 
North,  etc.,  Steamship  Co. 
(1892),  93  Mich.  348;  53  N.  W. 
529;   17  L.   R.  A.  726. 


employer's  exceptional  llvbility. 


201 


another  independent  contractor,   for  by  accepting  it  from 
such  contractor  he  adopts  it  as  his  own."- 

Sec.  100.     Building  Contracts,  Generally. 

The  early  case  of  Bush  v.  Steinman  '^^  carried  the 
doctrine  of  liability  of  a  landowner  for  the  safe  condition 
of  his  premises,  to  the  extreme  point  of  holding  that,  where 
work  is  done  on  an  owner's  premises,  he  ought  to  reserve 
control  over  the  methods,  and  if  he  does  not,  is  liable  for 
all  results.  It  is  generally  agreed,  at  the  present  time,  that 
a  landowner  will  not  be  liable  for  the  negligence  of  an  in- 
dependent contractor  or  that  of  his  servants  in  construct- 
ing a  building,  unless  the  work  is  inherently  dangerous,  or 
its  nature  is  such  that  in  letting  it  the  owner  commits  to 
the  contractor  some  absolute  duty  resting  on  him  as  owner 
of  the  property.^"*     "A  property  owner,   who   undertakes 


'"  Mulchey  v.  Methodist,  etc., 
Society  (1878).  125  Mass.  487;  15 
Am.  Neg.  Cas.  661,  n. ;  6  Reporter, 
751.  The  case  was  also  likened 
to  that  class  of  cases  wherein  the 
proprietor  of  realty  is  held  liable 
to  pay  damages  to  any  one  who, 
invited  to  come  upon  his  prem- 
ises, is  injured  by  a  latent  defect 
therein.  Indemaur  v.  Dames 
(1866),  1  C.  P.  274;  Elliott  v. 
Pray  (1865),  10  Allen  (Mass.). 
378;  87  Am.  Dec.  653;  Gilbert  v. 
Naele  (1875),  118  Mass.  278; 
Pickard  v.  Smith  (1861),  10  C. 
B.  (N.  S.),  470;  7  Am.  Neg.  R. 
158,  n.;  8  Id.  264,  n;  Holmes  v. 
Northeastern  R.  (1869),  L.  R.,  4 
E.xch.  254 ;  9  Am.  Neg.  R.  559,  n. ; 

COUGHTRY      V.      GlOUE,      ETC.,      Co. 

(1874),  56  N.  Y.   154;   15  Amer. 
Rep.  387. 


•'  (1799),  1  B.  &  P.  404,  reported 
herein,  Sec.  48,  ante.  As  already 
shown,  the  case  of  Bush  v. 
Steinman  has  been  unfavorably 
commented  on  in  this  connection 
in  England  and  America,  and  is 
probably  not  now  law.  Rhedie  v. 
London,  etc.,  R.  (1849),  4  Exch, 
244,  246;  6  Eng.  Rail.  &  Corp. 
Cas.  184;  Pollock  on  Torts,  5th 
ed.  p.  76,  note  h;  Blake  v.  Ferris 
(1851),  5  N.  Y.  48.  62-64;  55 
Amer.  Dec.  304;  see,  also.  Strauss 
V.  City  of  Louisville  (1900),  108 
Ky.  155;  55  S.  W.   1075. 

"Robinson  v.  Webb  (1875),  11 
Bush  (Ky.),  464;  Erie  v.  Caul- 
kins  (1877),  85  Pa.  St.  247;  27 
Amer.  Rep.  642;  Ryder  v.  Thomas 
(1878),  13  Hun,  206;  Gilbert  v. 
Beach  (1855),  16  N.  Y.  606; 
Engel  v.    Eureka    Clud    (1893), 


202       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  erection  of  a  building  thereon,  and  employes  a  compe- 
tent architect  to  draw  the  plans  and  specifications  and  to 
supervise  the  work,  and  a  competent  contractor  to  construct 
the  foundation  and  building,  is  not  responsible  for  an 
accident  caused  by  the  defective  execution  of  the  plan  by 
the  contractor  and  the  failure  of  the  architect  carefully 
to  inspect  the  work.  These  persons  are  regarded  as  in  the 
exercise  of  an  independent  calling."  '^^  Where  alterations 
in  a  building  were  being  made  by  a  contractor,  and  a  wall, 
weakened  by  age  and  decay,  fell  and  injured  a  third  person, 
the  owner  was  not  liable,  for  the  work  was  considered  not 
intrinsically  dangerous,  and  could  have  been  done  with 
safety  had  due  care  been  used."^^'  "The  principle,  upon  which 


137  N.  Y.  100;  32  N.  E.  1052; 
33  Amer.  St.  Rep.  695;  Vander- 
pool  V.  Husson  (1858),  28  Barb. 
(N.  Y.),  196;  Deford  v.  State 
(1863),  30  Md.  179;  Clark  v.  Fry 
(1858),  8  Ohio  St.  358;  72  Amer. 
Dec.  590. 

"White's  Supp.  to  Thomps. 
Neg.,  p.  92,  citing  Bjornsen  v. 
Saccone  (1899),  88  Ills.  App.  6; 
Geist  V.  Rothschild  (1900),  90  Ills. 
App.  324;  Murray  v.  Arthur 
(1901),  98  Ills.  App.  331;  Calla- 
han V.  Philips  Academy  (1901), 
180  Mass.  183;  62  N.  E.  360; 
Eldred  v.  Mackie  (1901),  178 
Mass.  1;  59  N.  E.  673;  Burns  v. 
McDonald  (1894),  57  Mo.  App. 
599,  plumber;  Korn  v.  "Weir 
(1904),  88  N.  Y.  Supp.  976;  16 
Am.  Neg.  R.  611,  n. ;  Nelson  v. 
Young  (1904),  87  N.  Y.  Supp. 
69;  Southwestern  Telephone  Co. 
V.  Paris  (1905),  39  Tex.  Civ.  App. 
424;  87  S.  W.  724;  Richmond  v. 
SiTTERDiNG  (1903),  101  Va.  354; 
43  S.  E.  562;  99  Amer.  St.  Rep. 
879;  65  L.   R.   A.   445;    Burke  v. 


Ireland    (1901),    166    N.    Y.   305; 
59  N.  E.  914. 

'"  Engel  v.  Eureka  Club  (1893), 
137  N.  Y.  100;  32  N.  E.  1052;  33 
Amer.  St.  Rep.  695.  "The  rule 
applicable  to  buildings  which  are 
being  reconstructed  or  repaired 
is  in  no  way  different  from  that 
which  prevails  with  respect  to 
buildings  under  construction ;" 
note  to  Salliotte  v.  King,  etc., 
Co.  (1903,  58  C.  C.  A.  466,  122 
Fed.  378),  in  65  L.  R.  A.  649. 
See  cases  cited  in  said  note  under 
(7).  One  owning  a  building  be- 
ing constructed  is  held  not  liable 
for  the  negligence  of  an  in- 
dependent contractor's  servant  in 
leaving  a  stone  in  a  dangerous 
position  so  that  it  fell  and  in- 
jured one  using  the  adjacent  side- 
walk, though  the  matter  of 
barricading  the  walk  or  taking 
other  precautions  does  not  seem 
to  have  been  considered.  John- 
son V.  Helbing  (1907),  6  Cal. 
App.  424;  92  Pac.  360. 


EMPLOYER  S   EXCEPTIONAL   LIABILITY. 


203 


the  rights  and  liabilities  of  the  owners  of  property  upon 
which  work  is  being  done  by  independent  contractors  rest, 
is  well  settled  and  uniformly  recognized.  It  is  founded  on 
wisdom  and  sound  policy.  The  limitations  which  have  been 
put  upon  the  immunity  from  liability  are  also  settled.  The 
application  of  the  exceptions  has  given  rise  to  much  dis- 
cussion and  frequently  to  some  conflict  in  the  views  of  the 
court."  "^7 

Sec.  101.     Same,  Relation,  How  Shown, 

In  a  joint  action  against  the  owner  of  a  building,  the 
contractor  and  subcontractor,  for  an  injury  to  the  em- 
ployee of  the  latter,  the  contracts  and  specifications  be- 
tween the  owner  and  the  contractor  were  held  properly  ad- 
mitted to  show  the  relation  of  the  defendants  to  one 
another. '^^ 


Sec.  102.     Same,  Management  of  Machinery. 

A  building  owner  is  not  liable  for  injuries  caused  by  an 
independent  contractor's  servant  improperly  managing  a 
hoisting  apparatus  furnished  in  a  reasonably  safe  condi- 
tion by  such  building  owner.''^  A  street  railway  company 
is  not  liable  for  injuries  received  by  a  child,  who  was  drawn 
into  a  machine  used  for  the  manufacture  of  concrete,  by 
one  who  had  contracted  for  the  building  of  the  road.®^ 
Nor  is  a  railway  company  liable  for  injuries  resulting  from 


"  Young  v.  Fosburg  Lumber 
Co.  (1908,  N.  C),  60  S.  E.  654; 
16  L.  R.  A.  (N.  S.).  259. 

"  Pioneer,  etc.,  Co.  v.  Howell 
(1901),  189  Ills.  123;  59  N.  E. 
535. 

'°  Piette  V.  Bavarian  Brewing 
Co.  (1892),  91  Mich.  605;  52  N. 
W.  152;  13  Am.  Neg.  Cas.  53.  n. 
Where  plaintiff's  property  was 
injured  by  the  fall  of  a  derrick 
used    in    the    construction    of    a 


building  under  an  independent 
contract,  the  owner  of  the  build- 
ing was  held  not  liable.  Prairie, 
etc.,  Co.  V.  Doig  (1873),  70  Ills. 
52. 

^  Chicago,  etc.,  R.  v.  Hennessey 
(1884),  16  Ills.  App.  153.  To  the 
same  effect  where  a  child's  hand 
was  caught  in  a  pulley  used  by  a 
contractor  in  stringing  telephone 
wires.  Vosbeck  v.  Kellogg  (1899). 
78  Minn.  176:  80  N.  W.  957. 


204       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

the  fact  that  a  derrick  furnished  to  a  contractor  for  the 
purpose  of  unloading-  railway  iron  was  permitted  by  him 
to  get  into  a  defective  and  dangerous  condition.^^ 

Sec.  103.     Same,  Party  Walls. 

"It  is  the  general  duty  of  the  owner  of  premises  to  keep 
the  w^alls  of  his  building  in  a  safe  condition,  so  that  they 
will  not  endanger  his  neighbor  by  falling;  and  if  he  negli- 
gently omits  its  performance  and  his  neighbor  is  injured, 
the  injury  is  actionable."  ^^  Where  a  proprietor  has  an 
easement  of  support  in  a  party  wall  as  wdiere  it  had  been 
erected  at  the  joint  expense  of  both  the  coterminous  land- 
owners, or  by  their  common  vendor,  then  if  one  disturbs 
it  to  the  other's  injury,  he  does  so  at  his  peril,  whether  he 
does  the  work  personally  or  by  an  independent  contractor.^^ 
Where  damages  are  caused  to  an  adjoining  proprietor  by 
the  breach  of  duty  of  a  house  owner  to  rebuild  with  rea- 
sonable dispatch  a  party  w^all,  which  he  had  had  taken 
down,  such  damages  are  imputable  to  him,  even  though  he 
has  employed  a  competent  architect  and  builder,  and  though 
they  are  responsible  for  the  negligence,  if  any,  which  caused 
the  delay.®^  But  it  is  said  that  the  work  of  raising  a  party 
wall  is  neither  dangerous  nor  extraordinary  in  itself,  so 
as  to  make  the  person  for  whom  it  is  done  liable  for  the  negli- 
gence of  an  independent  contractor  in  doing  the  work.^^ 

Sec.  104.     Same,  Removing  Dangerous  Wall. 

Where  a  building  or  a  structure  is  in  such  a  condition 
that  it  is  liable  to  fall  during  the  process  of  removing  it  or 

"King  v.  Railway  Co.   (1876),  evidence    showed    the    negligence 

66  N.  Y.  181 ;  23  Amer.  Rep.  37.  was    that    of    the    contractor    and 

*^  Excel    v.    Eureka    Club  not  of  the  owner. 

(1893)    137  N.  Y.   100;  32  N.  E.  «' Thomps.  Neg.,  Sec.  1125,  and 

1052;     33    Amer.     St.    Rep.    692,  cases  cited. 

citing     Mullen     v.      St.     John  "Joliffe    v.    Woodhouse    (1894, 

(1874),  57  N.  Y.  567;   15   Amer.  C  A.),  10  Times  L.  R.  553. 

Rep.  530,  in  which,  however,  the  '"Negus  v.  Becker   (1894),  143 


employer's  exceptional  liability. 


205 


tearing  it  down,  the  owner  of  it  is  not  relieved  from  lia- 
bility to  one  who  is  injured  in  consequence  of  its  so  falling 
by  the  fact  that  the  work  of  tearing  it  down  and  removing 
it  had  been  committed  to  an  independent  contractor.*"^  The 
owner  of  a  building,  who  employs  a  contractor  to  remove 
walls  which  have  become  dangerous,  is  liable  for  the  negli- 
gence of  the  contractor  in  performing  the  work,  whereby 
a  third  person  is  injured,  the  same  as  though  the  contractor 
were  his  servant.^^  The  owner  of  a  chimney  was  held  liable 
for  its  fall,  although  he  had  hired  an  independent  contrac- 
tor to  inspect  it,  who  had  pronounced  it  safe.***^ 

Sec.  105.     Same,  Exempt  Though  Fatal. 

The  employer  has  been  held  not  liable  in  a  number  of 
cases  where  the  injuries  caused  by  the  independent  contrac- 
tor's negligence  proved  fatal. ^^ 


N.  Y.  303;  38  N.  E.  290;  25  L. 
R.  A.  667;  45  Amer.  St.  Rep.  724. 
As  to  party  walls  and  similar 
cases,  see  Ketcham  v.  Newman 
(1894),  141  N.  Y.  205;  36  N.  E. 
197;  24  L.  R.  A.  102;  Bower  v. 
Peate  (1876),  1  Q.  B.  D.  321;  16 
Am.  Neg.  R.  645. 

^  Engel  v.  Eureka  Club,  59 
Hun  (N.  Y.).  593;  14  N.  Y.  Supp. 
184;  (1893),  137  N.  Y.  100;  32 
N.  E.  1052 ;  33  Amer.  St.  Rep.  695. 

^  Stcinbrook  v.  Covington,  etc., 
Co.  (1897),  4  Ohio  (N.  P.),  229; 
6  Ohio  Dec.  328;  Northern  Trust 
Co.  V.  Palmer  (1898),  70  Ills. 
App.  93;  56  N.  E.  796;  3  Am. 
Neg.  R.  531. 

'^"CoRK  V.  Blossom  (1894),  162 
Mass.  330;  38  N.  E.  495;  26  L. 
R.  A.  256;  44  Amer.  St.  Rep.  362. 
A  property  owner  employed  an 
independent  contractor  to  repair 
certain  chimneys,  by  taking  off  a 


few  feet  and  relaying  the  brick. 
Such  work,  the  court  declared, 
was  not  such  as  would  neces- 
sarily endanger  persons  in  the 
street.  It  did  not  involve  throw- 
ing brick  into  the  street,  or  caus- 
ing or  allowing  them  to  fall  so  as 
to  endanger  persons  traveling 
therein.  The  negligence  of  the 
contractor's  servants  in  handling 
bricks  was  a  mere  detail  of  the 
work.  The  work  itself  could  not 
be  classed  as  dangerous.  Any 
negligence  of  the  contractor's 
servants  was  merely  collateral  to 
the  work  and  did  not  render  the 
property  owner  liable.  Boomer  v. 
WiLiiuR  (1900),  176  Mass.  4S2; 
57  N.  E.  1004;  53  L.  R.  A.  172;  8 
Am.  Neg.  R.  246,  cited  in  Burd. 
Torts,  p.  141. 

"^Doran  v.  Flood  (1891),  47 
Fed.  543;  Thornton  v.  Lennon 
(1898),    29    App.    Div.    (N.    Y.), 


206       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITi. 

Sec.  106.     Landlord  and  Tenant,  Generally. 

In  answer  to  the  question  whether  a  landlord,  in  making- 
repairs  on  the  demised  premises  during  the  term,  will  be 
allowed  to  shift  the  responsibility  for  an  injury  to  the 
tenant,  upon  an  independent  contractor  who  may  be  in- 
solvent, some  courts  hold  that  he  will  not  and  others  that 
he  will.  In  some  jurisdictions  where  the  landlord  employs 
an  independent  contractor  to  make  repairs,  it  is  held  that 
he  is  not  liable  for  injuries  resulting  from  the  negligence 
of  such  contractor  in  making  the  repairs,  where  no  negli- 
gence is  shown  by  reason  of  the  employment  of  the  particu- 
lar contractor. °°  The  owner  is  not  made  liable  for  the  neg- 
ligence of  the  contractor  resulting  in  injury  to  a  tenant's 
family  in  a  building  in  course  of  reparation  because  of  his 


628;  51  N.  Y.  Supp.  433;  Neu- 
meister  v.  Eggers  (1899),  29  App. 
Div.  (N.  Y.),  385;  51  N.  Y.  Supp. 
481.  In  fact,  the  fatal  result  of  such 
negligence  does  not  appear  to 
have  been  the  subject  of  much 
discussion,  in  distinguishing  such 
cases  from  those  ordinarily  aris- 
ing as  to  the  employer's  liability 
for  his  contractor's  negligence. 

™24  Cyc,  1117,  citing,  in  addition 
to  cases  referred  to  infra,  Jefferson 
V.  Jameson,  etc.,  Co.  (1897),  165 
Ills.  133;  46  N.  E.  272,  reversing 
60     Ills.     App.     587;     Turner     v. 

McCarty    ( ),   4  E.   D.    Smith 

(N.    Y.),    247;     Sterger    v.    Van 

Siclen   ( ),  7  N.  Y.  Supp.  805. 

"See,  however,  O'Rourke  v.  Feist 
(1899),  59  N.  Y.  Supp.  157; 
Worthington  v.  Parker  (1885),  11 
Daly  (N.  Y.),  545;  Sulzbacker  v. 
Dickie  (1876),  6  Daly  (N.  Y.), 
469;  Blake  v.  Fox  (1892),  17  N. 
Y.  Supp.  508.  See,  also.  Mills  v. 
Holton  ( ),  2  Hurl.  &  N.  14." 


Where,  through  the  negligence  of 
an  independent  contractor  in  fail- 
ing to  take  measures  to  insure 
the  safety  of  the  tenants  while 
the  work  of  building  or  repairing 
is  in  progress,  an  injury  happens 
to  a  tenant  and  the  contractor  is 
not  under  any  control  of  the  land- 
lord, except  as  to  the  result  to  be 
attained,  and  the  tenant  is  hurt 
through  the  act  of  the  contractor, 
e.  g.,  in  leaving  an  excavation  un- 
guarded, the  landlord  will  not  be 
liable.  Wiese  v.  Remme  (1897), 
140  Mo.  289 ;  41  S.  W.  797 ;  3  Am. 
Neg.  R.  222.  A  landlord  was  e.x- 
onerated  from  liability  to  a  tenant 
for  an  injury  caused  by  the  fall 
of  plaster  where  an  employee  of 
the  independent  contractor,  en- 
gaged in  repairing  the  house, 
slipped  his  foot  and  went  through 
the  ceiling,  although  the  plaster 
was  out  of  repair  and  might  have 
fallen  later  of  its  own  accord. 
The  proximate  cause  of  the  dam- 


employer's  exceptional  llvbility. 


207 


failure  to  obtain  the  tenant's  consent  to  enter  the  premises.^^ 
The  general  rule  is,  that  a  lessor  is  not  liable  to  a  servant 
of  the  lessee  for  damages  resulting  from  the  latter's  negli- 
gence unless  some  duty  remained  upon  tlie  lessor  from  a 
failure  to  perform  which  the  injury  occurred."^  A  New 
York  court  has  recently  held  a  landlord  not  liable  for  the 
negligence  of  an  independent  contractor  in  permitting  ma- 
terial to  remain  in  a  hallway."^  "The  general  rule  is,  that 
where  a  landlord  lets  the  work  of  repairing  his  building  to 
another,  to  be  done  by  the  latter  as  an  independent  con- 
tractor, and  the  landlord  selects  such  a  person  as  a  man 
of  ordinary  prudence  and  care  would  employ  to  do  the 
work,  the  relation  of  master  and  servant  is  not  created,  and 
the  landlord  is  not  liable  to  the  tenant  for  the  negligence 
or  improper  execution  of  the  work,  or  responsible  for  the 
carelessness  or  negligence  of  the  contractor  in  its  per- 
formance." ^"^      A    tenant,    whose    premises    are    exposed 


age  was  deemed  to  be  the  act  of 
the  contractor's  employee  in  put- 
ting his  foot  through  the  ceil'ng 
and  not  the  landlord's  negli;?ence. 
Fitzgerald  v.  Timoney  (1895),  34 
N.  Y.  Supp.  460.  So,  also,  where 
damage  was  caused  to  a  tenant 
by  the  falling  of  soot  down  a 
chimney  upon  the  demised  prem- 
ises, where  the  accident  was  al- 
leged to  be  due  to  the  negligence 
of  a  contractor  who  was  working 
upon  the  chimney,  making  no 
claiim  that  it  was  the  landlord's 
duty  to  use  diligence  to  prevent 
such  an  accident.  O'Connor  v. 
Schnepel  (1895),  33  N.  Y.  Supp. 
562. 

"  McDermott  v.  McDonald 
(1894),  55  Ills.  App.  226.  A  land- 
lord was  held  rot  to  be  liable  in 
an  action  for  damages  brought  by 


the  parents  of  a  child  who  fell 
into  a  privy  vault  which  a  con- 
tractor had  dug  on  the  demised 
property  and  left  uninclosed  for 
several  months.  Wiese  v.  Remme 
(1897),  140  -Mo.  289;  41  S.  W. 
797:  3  Am.  Neg.  R.  222. 

""Crusselle  v.  Puch  (1881), 
67  Ga.  430;  44  Amer.  Rep.  724. 

"'Boss  V.  Jarmulowsky  (1903), 
81    N.   Y.   Supp.  400. 

"Note  to  Nahm  V.  Register, 
ETC.,  Co.  (1905,  120  Ky.  485,  87 
S.  W.  296),  in  9  Am.  &  Eng.  Ann. 
Cas.  211,  citing  Blake  v.  'Woolf 
(1898),  2  Q.  B.  425;  Lawrence  v. 
Shipman  (1873).  39  Conn.  536; 
Mumby  V.  Bowden  (1859),  125 
Fla.  454;  6  So.  453,  holding,  how- 
ever, that  where  it  appears  that 
the  landlord  and  not  the  con- 
tractor had  the  control  and  direc- 


208       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

and  whose  goods  are  injured  as  a  result  of  the  manner  in 
which  a  man  contracting  with  the  landlord  for  the  removal 
of  the  adjoining  house  performed  his  work,  can  not  re- 
cover from  the  landlord.^^ 

"The  better  view  is  that  a  landlord,  who  undertakes  to 
make  repairs  on  the  demised  premises  during  the  term,  is 
liable  for  damages  to  the  person  or  property  of  the  tenant 
resulting  from  the  negligence  of  those  whom  he  may- 
engage  to  make  the  repairs,  although  they  are  employed 
by  the  job,  and  without  reference  to  the  question  whether 
the  landlord  is  under  an  agreement  with  the  tenant  to  make 
the  repairs  or  not."  ^"     A  landlord  was  held  liable  to  his 


tion  of  the  work,  the  former  is 
liable.  Eblin  v.  Miller  (1880),  7S 
Ky.  371;  Wiese  v.  Remme  (1897), 
140  Mass.  289;  41  S.  W.  797; 
Morton  v.  Thurber  (1881),  85  N. 
Y.  550;  Boss  v.  Jarmulowsky, 
supra;  Mahon  v.  Burns  (1894), 
29  N.  Y.  Supp.  682;  34  Id.  91; 
O'Connor  v.  Schnepel  (1895),  33 
N.  Y.  Supp.  562;  Rotter  v.  Goer- 
litz  (1890),  12  N.  Y.  Supp.  210; 
Meany  v.  Abbott  (1867),  6  Phila. 
(Pa.),  256.  A  landlord  is  not 
liable,  under  an  implied  covenant 
of  quiet  enjoyment,  for  injuries 
to  the  personal  property  of  a 
tenant  caused  by  the  tortious  acts 
of  the  servants  of  an  independent 
contractor  for  a  one  story  exten- 
sion to  the  building,  while  using 
a  part  of  the  demised  premises 
as  a  means  of  access  to  their 
work.  Hyde  v.  Wilmore  (1895), 
35  N.  Y.  Supp.  681. 

°' Rotter  v.  Goerlitz  (1890),  16 
Daly,  484;  12  N.  Y.  Supp.  210. 

""Thomps.  Neg.,  Sec.  1142,  1148, 
cit'mcr  Houston,  etc.,  R.  v.  Meudor 
(1878),  50  Tex.  77.     Contra,  Las- 


ker,  etc.,  Association  v.  Hatcher 
(Tex.  Civ.  App.,  1894),  28  S.  W. 
404.  "In  other  jurisdictions,  how- 
ever, it  is  held  tliat  the  landlord 
in  making  repairs  and  improve- 
ments to  demised  premises  owes 
a  duty  of  reasonable  care  to  the 
occupying  tenants,  which  he  can 
not  escape  by  placing  the  work 
with  an  independent  contractor, 
especially  if  the  work  to  be  done 
is  attended  with  danger  to  the 
tenant."  24  Cyc.  1117,  citing  inter 
alia,  Nahm  v.  Register  News- 
paper Co.  (1895),  120  Ky.  485;  87 
S.  W.  296;  9  Amer.  &  Eng.  Ann. 
Cas.  211;  Curtis  v.  Kiley  (1891), 
153  Mass.  123;  26  N.  E.  421; 
Peerless  Manufacturing  Co.  v. 
Bagley  (1901),  126  Mich.  225;  85 
N.  W.  568;  86  Amer.  St.  Rep. 
537;  53  L.  R.  A.  285;  Dorse  v. 
Fisher  ( ),  10  Ohio  Dec.  (re- 
print), 163;  Wilber  v.  FoUansbee 
(1897).  97  Wise.  577;  72  N.  W. 
741;  73  Id.  559;  Wertheimer  v. 
Saunders  (1897),  95  Wise.  573; 
70  N.  W.  824;  37  L.  R.  A.  146. 


employer's  exceptional  liability. 


209 


tenants  for  damages  sustained  by  them  from  the  weather, 
in  consequence  of  the  act  of  the  contractor,  whom  he  had 
employed  to  repair  the  building,  in  leaving  it  unroofed, 
without  covering.*^" 

Sec.  107.     Same,  Discliargiiig-  Legal  Duty. 

"Where  a  landlord  is  under  a  legal  duty  to  make  repairs, 
and  he  employs  an  independent  contractor  to  do  the  work, 
and  as  a  result  of  the  contractor's  negligence  the  tenant 
suffers  damages,  the  landlord  can  not  escape  by  showing 
that  he  employed  an  independent  contractor,  over  whom 
he  had  no  control,  to  make  the  repairs  for  him."  "^  A  land- 
lord who  employs  a  contractor  to  make  certain  repairs  which 
he  is  bound  to  make  is  liable  for  injuries  caused  to  a  tenant 
by  the  failure  of  the  contractor  to  execute  the  work;  as 
where  a  tenant  fell  through  a  defective  bridge  between  an 
apartment  house  and  another  building."^ 


"Sulzbacker  v.  Dickie  (1876), 
6  Daly  (N.  Y.),  469.  But  see 
other  New  York  cases,  supra, 
holding  contrary.  An  intermedi- 
ate Pennsylvania  court  holds  a 
landlord  responsible  to  his  tenant 
for  an  injury  arising  from  .the 
negligence  of  a  plumber  in  im- 
properly constructing  a  water 
tank  on  the  leased  premises. 
Meany  v.  Abbott  (1857),  6  Phila. 
(Penn.),  256.  The  landlord  was 
held  liable  for  injuries  to  a  tenant 
where  no  contract  had  been  let 
to  the  mechanic  engaging  in 
making  the  repairs,  in  Anderson 
V.  Moore  (1903).  108  Ills.  App. 
106. 

"Note  to  Nahm  v.  Register, 
ETC..  Co.  (1905.  120  Ky.  485),  in 
9  Am.  &  Eng.  Annot.  Cas.,  p.  212, 
citing  Peerless,  etc.,  Co.  v.  Bag- 
ley  (1901),  126  Mich.  225;  85  N. 


W.  568;  86  Amer.  St.  Rep.  537; 
53  L.  R.  A.  285 ;  O'Rourke  v.  Feist 
(1899),  42  N.  Y.  App.  Div.  136; 

59  N.  Y.  Supp.  157;  Randolph  v. 
Feist  (1898),  52  X.  Y.  Supp.  109; 
Sulzbacker  v.  Dickie  (1876),  51 
How.  Pr.  (N.  Y.),  500;  Worthing- 
ton  V.  Parker  (1885),  11  Daly  (X. 
Y.),  545;  Curtis  v.  Kiley  (1891). 
153  Mass.  123;  26  N.  E.  421; 
Burd.  Cas.  Torts,  403 ;  Pittsfield, 
ETC..  Co.  V.  Pittsfield,  etc.,  Co. 
(1902),  71  N.  H.  522;  53  Atl.  807; 

60  L.  R.  A.  116;  Jefferson  v. 
Jameson,  etc.,  Co.  (1897).  165 
Ills.  138;  46  N.  E.  272. 

"•Brennan  v.  Ellis  (1893),  70 
Hun,  472;  24  N.  Y.  Supp.  426. 
The  same  rule  applies  where  the 
work  or  material  is  that  furnished 
by  a  subcontractor.  Butts  v. 
Mackey  Co.  (1893).  72  Hun  (N. 
Y.).  562;  25  N.  Y.  Supp.  531.    Cf. 


210       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABITITk'. 


Sec.  108.     Same,  Personally  Supervising. 

Although  the  landlord  may  call  in,  to  do  certain  work, 
a  competent  contractor,  yet  if  he  personally  supervises  the 
work  and  it  is  improperly  done  and  the  tenant  is  thereby 
damaged,  the  landlord  will  be  liable ;  e.  g.,  where  he  called 
in  a  competent  tinsmith  to  replace  defective  pipes  conduct- 
ing water  from  the  roof,  and  through  the  manner  in  which 
the  work  was  done,  the  goods  of  the  tenant  were  injured 
by  leakage. ^'^'^ 

Sec.  109,     Same,  Work  Imminently  Dangerous. 

Although  the  landlord  may  stipulate  with  the  contractor 
for  a  certain  result  only,  without  reserving  any  control  over 
the  contractor  as  to  his  methods  of  achieving  that  result, 
yet  if  the  result  itself  is  imminently  dangerous,  in  conse- 
quence of  which  an  injury  accrues  to  the  tenants  of  the 
landlord,  the  latter  will  be  liable;  e.  g.,  the  landlord  of  a 
tenement  house  was  held  liable  to  a  tenant  for  the  falling 
of  a  dumb  waiter,  gratuitousy  supplied  by  him  for  the  con- 
venience of  the  tenants,  whose  fall  was  due  to  the  negli- 
gent splicing  of  the  ropes  supporting  it,  although  the  person 
who  did  the  splicing  was  an  independent  contractor.  ^'^^  A 
Kentucky  court  has  recently  held  that  a  landlord  erecting 
additional  stories  on  a  building  occupied  by  a  tenant  will 
not  be  relieved  from  liability  for  injuries  to  the  stock  of 
a  tenant  by  falling  rain  merely  because  the  work  is  being 


(1895),  147  N.  Y.  715;  42  N.  E. 
722.  Where  a  slied  belonging  to 
a  livery  stable  keeper,  intended 
for  receiving  carriages,  was  blown 
down  by  a  high  wind  while  being 
erected  by  an  independent  con- 
tractor, whereby  plaintiff's  car- 
riages, which  had  been  p'accd  in 
the  lower  story  after  its  comple- 
tion,   were    injured,    it    was    held 


that  the  plaintiff  was  properly 
non-suited  and  that  the  defendant 
had  exercised  ordinary  care,  all 
that  the  law  required.  Searle  v. 
Laverick  (1874),  L.  R..  9  Q.  B. 
122. 

'""  W  o  r  t  h  i  n  g  t  o  n  v.  Parker 
(1885).  11   Daly   (N.  Y.),  545. 

^''^  Blake  v.  Fox  (1892),  17  N. 
Y.  Supp.  508. 


employer's  exceptional  ll\bility. 


211 


done  by  an  independent  contractor. ^^^  A  Michigan  court 
held  the  landlord  liable  for  the  negligence  of  an  independent 
contractor  installing  an  automatic  sprinkler  system,  who 
put  in  sprinkler  heads  which  fused  at  too  low  a  temperature 
and  damage  to  the  tenant's  goods  from  the  water  re- 
sulted.^"^  "As  a  limitation  upon  the  rule  (exempting  a 
landlord  from  liability  for  acts  of  an  independent  contrac- 
tor) it  is  held  in  some  cases  that,  where  an  act  voluntarily 
undertaken  by  a  landlord  in  repairing  his  building  is  one 
from  its  very  nature  liable  to  damage  his  tenant,  the  landlord 
is  not  released  from  responsibility  to  a  tenant  damaged 
thereby,  although  the  landlord  enters  into  a  contract  with 
an  independent  contractor  to  perform  the  work,  and  the 
damage  occurs  through  the  negligence  of  the  latter."  ^"^^ 


^"-Nahm  et  al.  v.  Register, 
ETC.,  Co.  (1905),  120  Ky.  485;  87 
S.  W.  296;  9  Amer.  &  Eng. 
Annot.  Cas.  209.  Here  a  land- 
lord, acting  without  the  consent 
of  his  tenant,  employs  an  inde- 
pendent contractor  to  take  the 
roof  off  of  the  leased  premises 
for  the  purpose  of  adding  another 
story  to  the  building  and  the 
landlord  was  held  liable  to  the 
tenant  for  the  injury  to  the  lat- 
ter's  goods  resulting  from  the 
negligent  manner  in  which  the 
work  was  done. 

"'^  Peerless  Manufacturing  Co. 
V.  Bagley   (1901),  126  Mich.  225; 

85  N.  W.  568;   S3  L.  R.  A.  285; 

86  Amer.  St.  Rep.  537. 

^""Note  to  Nahm  v.  Register, 
ETC.,  Co..  supra,  9  Amer.  &  Eng. 
Annot.  Cas.  212,  citing  Robbins  v. 
Atkins  (1897),  168  Mass.  45;  46 
N.  E.  425;   1   Am.   Neg.  R.  617; 


Sulzbacker  v.  Dickie  (1876),  51 
How.  Pr.  (N.  Y.),  500;  Malony 
V.  Bradley  (1891),  14  N.  Y.  Supp. 
794;  O'Rourke  v.  Feist  (1899),  59 
N.  Y.  Supp.  157;  Wertheimer  v. 
Saunders  (1893),  95  Wise.  5 '3; 
70  N.  W.  824;  2>7  L.  R.  A.  146; 
Wilber  v.  FoUansbee  (1897),  97 
Wise.  577;  72  N.  W.  741;  73  N. 
W.  559;  Lasker,  etc.,  Co.  v. 
Hatcher  (1894,  Tex.  Civ.  App.), 
28  S.  W.  404.  Where  damage 
was  done  to  the  goods  of  a  ten- 
ant by  rain  which  found  its  way 
into  the  building  through  open- 
ings left  by  an  independent  con- 
tractor while  a  new  roof  wis 
being  put  on,  the  landlord  was 
held  answerable,  in  Meyers  v. 
Easton  (187S),  4  Vict.  L.  Rep. 
283.  For  other  cases  involving 
similar  occurrences  and  sustairirg 
the  same  rule,  see  note  in  65  L. 
R.  A.  855. 


212       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  110.    Master's  Non-assignable  Duty. 

If  a  master  delegates  the  performance  of  a  primary  and 
non-assignable  duty,  which  such  master  owes  to  his  own 
servant,  to  an  independent  contractor,  the  rule  which  ex- 
onerates a  proprietor  from  responsibility  for  the  negligence 
of  an  independent  contractor  ceases  to  obtain,  but  the  con- 
tractor becomes  with  respect  to  the  performance  of  such 
duties  the  vice-principal  and  representative  of  the  master, 
and  the  master  is  liable  to  his  servant  for  the  negligence 
of  the  contractor  in  failing  to  perform  them,  or  in  the  man- 
ner of  performing  them.^"^ 


'"*  North    Chicago    Street   R.   v. 
Dudgeon     (1900),    83    Ills.    App. 
528;   183  Ills.  477;  56  N.  E.  595, 
railwa}'  company  employing  an  in- 
dependent contractor  to  repair  its 
tracks;    Woodman    v.    Metropoli- 
TAX    R.    Co.     (1889),    149    Mass. 
339;  21  N.  E.  4S2;  4  L.  R.  A.  213; 
6  Rail.   &   Corp.    Law   J.   72;    14 
Amer.  St.  Rep.  427;  12  Am.  Neg. 
Cas.  80,  a  street  obstructed  by  an 
independent  contractor  in  the  per- 
formance  of  a  contract  with  the 
proprietor;    Sackewitz    v.    Ameri- 
can, etc.,  Co.  (1899),  78  Mo.  App. 
144;    Johnston    v.    Phoenix,    etc., 
Co.    (1901),  60  N.  Y.  Supp.  947; 
169  N.  Y.  581 ;  Moran  v.  Corliss, 
ETC.,  Co.   (1899),  21  R.  I.  385;  43 
Atl.  874;  45  L.  R.  A.  267,  master 
delegated  to  an -independent  con- 
tractor   the    duty    of    keeping    a 
crane  operated  by  electricity  in  a 
safe  condition  for  the  use  of  his 
employees      and     he     negligently 
failed    to    perform    it,    in    conse- 
quence of  which  an  employee  was 
injured;     Water     Co.     v.     Ware 


(1872),    16   Wall.    (U.    S.),   566; 
Toledo,  etc.,  Co.  v.  Bosch  (1900), 
41    C.   C.   A.   482;    101    Fed.   530; 
Stewart    v.    Ferguson    (1899),    60 
N.    Y.    Supp.    429,    employer    di- 
rected another  to  perform  a  statu- 
tory   duty    of '  such    employer,    of 
erecting  a  safe  scaffolding  where- 
on his  employees  were  to   work; 
Mclntyre     v.     Boston,     etc.,     R. 
(1895),  163  Mass.  189;  39  N.  E. 
1012;    Pennsylvania   Railroad    Co. 
V.  LaRue  (1897),  81  Fed.  148;  27 
C.    C.    A.    363;    Bushby   v.    New 
York,  etc.,  R.   (1887),  107  N.  Y. 
374;    14  N.   E.   407;    1   Amer.   St. 
Rep.  844.     For  decisions  more  or 
less  contra,  see  Bemisch  v.  Rob- 
erts (1891),  143  Pa.  St.  1;  21  Atl. 
998;      Mansfield,      etc.,      Co.      v. 
McEnery     (1879),    91     Penn.    St. 
185;    Fraser    v.    Red    River,    etc., 
Co.    (1891),  45  Minn.  235;  47  N. 
W.      785,      scaffold;      Devlin      v 
Smith    (1882),  25   Hun    (N.   Y.), 
206;  89  N.  Y.  476;  42  Amer.  Rep. 
311.     scaffold;     Baird     v.     Dunn 
(1895),  33  New  Bruns.  156. 


CHAPTER    V. 


Employer's  Exceptional  Llvbility — II.  Character  of 
Obligation —  (  Continued  ) . 


SECTION 

115.  Franchise    rights,    generally., 

116.  Railroad    companies,    gener- 

ally. 

117.  Same — Delegating  operation 

of  road. 

118.  Same— Contractor  operating 

road. 

119.  Same — Contractor  in  control 

at  time  of  injury. 

120.  Same — Contractor  negligent- 

ly  managing   construction 
train. 

121.  Same — Presumption     as     to 

direction  by   employer. 

122.  Same— Contractor  killing 

cattle. 

123.  Same — Contractor  failing  to 

fence. 

124.  Same — Contractor    or    serv- 

ant trespassing. 

125.  Same — Duty   to   traveler   as 

to  excavations. 

126.  Same — L  e  s  s  e  e      operating 

road. 

127.  Same — T  r  u  s  t  e  e  operating 

road. 

128.  Same — Using  tracks  in  com- 

mon. 


SECTION 

129.  Same — Liability      as     ware- 

housemen. 

130.  Street  railroads. 

131.  Carriers'  duty,  generally. 

132.  Same — Safe  premises. 

133.  Same — Safe  vehicles,  etc. 

134.  Same — Safe  tracks,  etc. 

135.  Same — Sleepers,    etc. 

136.  Same — Special     contract     as 

to  freight. 

137.  Same — As  to  running  trains. 

138.  Same — As  to  criminal  acts. 

139.  Cities  and  towns,  generally. 

140.  Same — Jointly  with  contrac- 

tor. 

141.  Same— Safety  of  streets. 

142.  Same — Constructing   sewers. 

143.  Same — Grading  street. 

144.  Same — As  to  bridges. 

145.  Same — Necessity   as   to   no- 

tice. 

146.  Same — Contractor's      t  r  e  s- 

passes. 

147.  Counties. 

148.  Public  utility  companies. 

149.  Public  charities. 

150.  Public  exhibitions. 

151.  Profit  corporations. 


Sec.  115.     Franchise  Rights,  Generally. 

"Even  though  the  person,  who  causes  the  injur}',  is  a 
contractor,  he  will  be  regarded  as  the  servant  or  agent  of 
the  corporation  for  which  he  is  doing  the  work,  if  he  is  ex- 

213 


214       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


ercising  some  chartered  privilege  or  power  of  such  corpora- 
tion with  its  assent,  which  he  could  not  have  exercised 
independently  of  the  charter  of  such  corporation."^  It  is 
a  principle  of  law  that,  when  one  is  conducting  a  business 
the  necessary  effect  of  which  is  to  expose  others  to  great 
danger,  so  that  he  ought  to  take  precautions  for  their 
safety,  he  is  responsible  for  the  negligence  of  an  indepen- 
dent contractor  to  whom  he  intrusts  the  performance  of 
this  duty. 2  "When  a  corporation  owes  a  duty,  either  to 
its  employees  or  to  the  public,  it  can  not  delegate  the  per- 
formance of  that  duty  to  a  substitute."  ^  Quasi-public 
corporations,  such  as  electric  light  companies,  are  answer- 
able for  the  negligence  of  contractors  employed  by  them  in 
the  exercise  of  any  of  their  charter  powers  and  privileges.'' 


'  Chicago,  etc.,  Gas  Co.  v. 
Myers  (1897),  168  Ills.  139;  48 
N.  E.  46;  Chicago  v.  Murdock 
(1904),  212  Ills.  9;  72  N.  E.  46; 
103  Amer.  St.  Rep.  221. 

^Boucher  v.  New  York,  *itc., 
R.  (1907,  Mass.),  82  N.  E.  15; 
13  L.  R.  A.  (N.  S.),  1177;  50 
Am.  &  Eng.  Ry.  Cas.  1,  citing 
Woodman  v.  Metropolitan  R. 
Co.  (1889).  149  Mass.  335;  21  N. 
E.  482;  4  L.  R.  A.  213;  14  Amer. 
St.  Rep.  427 ;  6  Rail.  &  Corp.  Law 
J.  72;  12  Am.  Neg.  Cas.  80;  Cur- 
tis V.  KiLEY  (1891),  153  Mass. 
123;  26  N.  E.  421;  Burd.  Cas. 
Torts,  403;  Blessington  v.  Boston 
(1891),  153  Mass.  409;  26  N.  E. 
1113;  Pye  v.  Faxon  (1892),  156 
Mass.  471;  31  N.  E.  640.  "The 
American  reports  contain  a  large 
number  of  decisions  which  are 
based  on  the  doctrine  that  a  cor- 
poration cannot,  by  delegating  to 
another  party  the  functions  which 
it  is  empowered  to  perform,   and 


which  constitute  the  essential 
reason  for  its  existence,  escape 
responsibility  for  injuries  caused 
by  the  non-performance  of  such 
duties  as  may  be  attached,  either 
by  its  charter  or  by  the  general 
law  of  the  state  in  which  it  is 
organized,  to  the  exercise  of 
franchises  conferred  upon  it." 
Note  to  Anderson  v.  Fleming 
(1903,  Ind.),  66  L.  R.  A.  136, 
citing  cases. 

^  Texas,  etc.,  R.  v.  Juneman 
(1895),  71  Fed.  939;  18  C.  C.  A. 
394. 

*  Capital  Electric  Co.  v.  Haus- 
wald  (1898).  78  Ills.  App.  359. 
The  rule  of  liability  was  held  to 
apply  where  a  servant  of  a  con- 
tractor engaged  in  work  on  an 
elevated  railroad,  dropped  a  heavy 
piece  of  steel  on  a  person  passmg 
under  the  structure.  Metropoli- 
tan, etc.,  R.  V.  Dick  (1900),  87 
Ills.  App.  40. 


employer's  exceptional  llvbility. 


215 


Sec.  116.     Railroad  Companies,   Generally. 

The  general  rule  of  non-liability  has  usually  been  applied 
so  as  to  exempt  railroads  from  liability  for  wrongs  done 
by  contractors  employed  by  them  to  construct  and  repair 
their  roads. ^  "The  true  distinction  in  these  cases  is,  that, 
where  the  wrongful  act  is  done  by  contractors  or  lessees 
of  a  railroad  corporation  in  pursuance  of  the  special  powers 
and  privileges  conferred  upon  it.  by  its  charter,  or  by  the 
applicatory  general  law,  and  that  but  for  such  charter  or 
general  enabling  statute  they  would  have  no  right  to  prose- 
cute the  particular  business,  such  contractors  or  lessees 
are  regarded  as  servants  of  the  company,  and  acting  under 
its  direction  for  the  purpose  of  conserving  the  rights  of 
third  parties.     But  that  the  act  which  is  committed  by  the 


'Clark  V.  Hannibal,  etc.,  R. 
(1865),  36  Mo.  202;  Meyer  v. 
Midland  R.  (1873),  2  Nebr.  319; 
Central  Railroad  v.  Grant  (1872), 
46  Ga.  417;  14  Am.  Neg.  Cas. 
212,  n;  West  v.  St.  Louis,  etc.,  R. 
(1872).  63  Ills.  545;  Callahan  v. 
Burlington,  etc.,  R.  (1867).  23 
Iowa,  562;  Kansas,  etc.,  R.  v. 
Fitzsimmons  (1877),  18  Kans.  34; 
Tihbetts  v.  Knox,  etc.,  R.  (1873), 
62  Me.  437;  E.\ton  v.  European, 
ETC.,  Co.  (1871),  59  Me.  520;  8 
Amer.  Rep.  430;  Reedie  v.  Lon- 
don, ETC.,  R.  (1849).  4  Exch. 
244;  6  Eng.  Rail.  &  Corp.  Cas. 
184 ;  Steel  v.  Southeastern  R.ml- 
ROAD  (1855),  16  C.  B.  550,  parol 
contract ;  Pawlet  v.  Rutland,  etc.. 
R.  (1855),  28  Vt.  297;  Schular 
V.  Hudson  River  R.  (1862),  38 
Barb.  (N.  Y.),  653;  Hunt  v. 
Pennsylvania  Railroad  (1866),  51 
Penn.   St.  475;   Clark  v.  Vermont 


Railroad  (1854),  28  Vt.  103; 
McCafferty  v.  Spuyten  Duyvil. 
etc.,  Railroad  (1874),  61  N.  Y. 
178;  19  Amer.  Rep.  267.  Contra, 
Stone  v.  Cheshire  Railroad 
(1849),  19  N.  H.  427;  51  Amer. 
Dec.  192;  Edmundson  v.  Pitts- 
burg, etc..  R.  (18S5),  111  Penn. 
St.  316;  2  Atl.  404;  23  Am.  & 
Eng.  R.  Cas.  423.  The  principle 
that  a  railroad  company  cannot 
delegate  to  another  its  charter 
rights  and  privileges,  is  held  not 
to  extend  so  far  as  to  make  the 
company  liable  for  the  negligence 
of  an  independent  contractor  en- 
gaged in  the  construction  of  its 
road,  in  Sanford  v.  P.wvtucket 
Street  Railroad  (1898).  19  R.  L 
537;  35  Atl.  67;  33  L.  R.  A.  5r>4; 
4  Amer.  &  Eng.  R.  Cas.  (N.  S.). 
318;  CuNNiNGH.vM  V.  Interna- 
tiox.vl  R.\ilro.\d  (1879),  51  Tex. 
503;  32  Amer.  Rep.  632. 


216       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


company  to  them  is  one  which  does  not  require,  for  its 
lawful  performance,  the  aid  of  any  franchise  vested  in  the 
company,  the  rule  will  be  different  and  the  company  will 
not  be  responsible  for  the  negligence  or  wrong  of  the  con- 
tractor (or  lessee)  in  performing  it,  unless  such  responsi- 
bility would  attach  to  any  other  proprietor  under  similar 
circumstances."  "^  "If  a  railroad  is  built  properly,"  says  a 
Georgia  court,  *Sve  do  not  think  any  nuisance  will  result 
from  the  building.  The  company,  under  its  charter,  had 
authority  of  law  to  do  this  work;  and  when  it  contracted 
with  the  construction  company,  it  was,  of  course,  implied 
that  the  latter  would  do  the  w^ork  in  a  lawful  and  proper 
manner."  ''' 

^Thomps.  Neg.,  Sec.  669,  citing 
in    note    109,    West   v.    St.   Louis, 
etc.,  R.  (1872),  63  Ills.  545;  San- 
ford  V.  Pawtucket  St.  R.,  supra. 
"Cf.,  Toledo   Street  R.  v.  Conroy 
(1890),  39  Ills.  App.  351,  where  the 
doctrine    is    inaccurately    stated." 
In    a    Massachusetts    case    which 
distinctly     overruled     Bush     v. 
Steinman     (ante,    Sec.    48),    the 
court  said:     "The   case,   then,  of 
Lowell  v.  Boston,  etc.,  R.  (1839), 
23    Pick.    24;    34   Anier.    Dec.    33, 
stands     perfectly     well     upon     its 
own  principles,  and  is  clearly  dis- 
tinguishable from  the  case  at  bar. 
The    court    might    well    say    that 
the  fact  of  N.,  being  a  contractor 
for    this    section,    did   not   relieve 
the    corporation    from    the    duties 
or  responsibility  imposed  on  them 
by    their    charter    and    the    law, 
especially    as    the    failure    to    re- 
place the  barriers  was  the  act  of 
their     immediate     servant     acting 
under  their  orders."     Hilliard  v. 
Richardson    (1855),   3   Gray 
(Mass.),  353;  63  Amer.  Dec.  743. 


'Atlanta,     etc..     Railroad     v. 
Kimberley  (1891),  87  Ga.  161;  13 
S.  E.  277;  27  Amer.  St.  Rep.  231, 
in    which    the    declaration   alleged 
that    the    defendant    had    made    a 
deep  cut  while  its  road  was  being 
constructed,     and     had     deposited 
the  earth  taken  out  in  such  man- 
ner as  to  dam  up  a  small  stream 
and  form  a  pond  near  the  plain- 
tifif's    house;    that    the    defendant 
had  placed  near  the  house  a  con- 
vict camp  used  in  constructing  the 
road,   and  permitted  the  filth  ac- 
cumulating in  the  camp   sinks  to 
flow    out    and   be    deposited   near 
the  house,  whereby  the  house  be- 
came   infected   with   malaria,    etc. 
A  railroad  company  was  held  li- 
able  for   an   injury  caused  by  an 
attack  by  a  vicious  steer,  although 
it  had  made  an  independent  con- 
tract with  another  to  remove  and 
kill  injured  animals.     Texas,  etc., 
R.    v.    Juneman    (1895),    71    Fed. 
939;  30  U.  S.  App.  541;  18  C.  C. 
A.  249. 


employer's  exceptional  liability.  217 

Sec.  117.     Same,  Delegating  Operation  of  Road. 

A  railroad  company  contracting  for  the  moving  of  its  cars 
by  liorse  power  over  its  own  tracks,  from  one  of  its  depots 
to  the  various  consignees,  is  Hable  for  the  contractor's  neg- 
ligence, since  it  could  not  relieve  itself  from  the  liabilities 
imposed  by  its  charter,  by  adopting  any  particular  kind  of 
power.^  The  duty  of  a  railroad  company,  either  by  statute  or 
at  common  law,  to  maintain  gates  at  a  crossing  of  a  crowded 
street  in  a  great  city,  can  not  be  delegated  to  an  independent 
contractor,  so  as  to  relieve  it  from  liability  for  negligence  of 
the  gatekeeper  which  results  in  injury  to  a  traveler  on  the 
highway.^  "In  leaving  railroad  cars  on  the  siding  in  ques- 
tion, the  railroad  company  was  exercising  its  charter 
powers,  which  could  not  be  delegated  so  as  to  relieve  it 
from  responsibility  for  the  negligence  of  the  contractor's 
employees  or  defective  appliances."  ^"^ 

Sec.  118.     Same,  Contractor  Operating  Road. 

Some  cases  hold  tliat,  if  a  railroad  company  devolves  the 
execution  of  its  franchise  upon  contractors,  it  remains  as 
liable  for  the  latter's  acts  as  though  those  acts  were  done 
by  its  own  servants.  It  was  so  held  where  a  chartered 
railroad  company  permitted  a  construction  company  to  use 
its  franchises  by  running  passenger  trains  over  its  railway.  ^^ 
In  the  case  of  a  railroad  in  course  of  construction,  a  contract 

*  Philadelphia,  etc.,  R.  v.   Hahn  a    street    crossing,"    see    note    to 

(183S.  Pa.),  12  Atl.  479;  32  Am.  Boucher  v.   New  York,  etc.,  R., 

&  Eng.  R.  Cas.  24.  supra,  at  p.  1177. 

'  Boucher   v.    New   York,   etc.,  '"  Camblin  v.   Philadelphia,   etc., 

R.    (1907,   Mass.),   82   N.    E.    15;  R.   (1907),  218  Penn.  54;  66  Atl. 

13  L.  R.  A.  (N.  S.).  1177.    For  a  977;    50   Amer.    &    Eng.   R.    Cas. 

discussion  of  the  "right  of  a  rail-  (N.  S.),  160. 

road   company   to   delegate   to   an  "Chattanooga,    etc.,    R.    v. 

independent  contractor  the  main-  Whiteland   (1S92),  89  Ga.  190;  15 

tenance  of  gates  or  a  flagman  at  S.  E.  44. 


218       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

between  a  railroad  company  and  a  construction  company 
which  was  doing  the  work  of  construction  whereby  the 
construction  company  was  allowed  to  operate  the  road  and 
to  receive  its  earnins^s  for  a  certain  time,  was  held  not  to 
relieve  the  railroad  company  from  liability  for  injuries 
caused  by  the  negligence  of  the  construction  company  in 
carrying  passengers;  since  the  construction  company 
operated  the  road  by  virtue  of  the  franchise  granted  by  the 
state  to  the  railroad  company,  and  became  in  substance  and 
effect,  its  agents  in  so  doing. ^^  A  railroad  company  operating 
another's  road  under  contract  is  an  "agent"  of  the  owning 
road  under  the  Michigan  Railroad  Act  (Sec.  43,  Comp.  Laws, 
Sec.  1987),  and  the  agent's  neglect  to  erect  and  maintain 
fences  along  the  road's  line,  enjoined  by  statute,  renders  the 
owning  road  liable  for  all  consequent  damages.  ^^  In  a  much 
litigated  Texas  case  it  was  first  held,  that  the  railroad  com- 
pany was  liable  where  a  contractor  for  the  construction  of 
its  railway  violated  the  provisions  of  a  statute  requiring  rail- 
way companies  to  make  proper  highway  crossings  and  keep 
them  in  repair. ^^  This  was  reversed  on  appeal,  the  court 
holding  that  a  charge  embodying  the  theory  that  the  fact 
that  the  company's  engineer  had  no  authority  over  the  con- 
tractor except  to  see  that  the  road  was  constructed  accord- 
ing to  details,  conclusively  negatives  the  company's  liability, 


"  Chattanooga,  etc.,  R.  v.  Lid- 
dell  (1890),  85  Ga.  482;  11  S.  E. 
853;  8  Rail.  &  Corp.  Law  J.  295; 
21  Anier.  St.  Rep.  169;  Lakin  v. 
Willamette,  etc.,  R.  (1885),  13 
Ore.  436;  57  Amer.  Rep.  25;  11 
Pac.  68. 

'*Bay  City,  etc.,  R.  v.  Austin 
(1870),  21  Mich.  390.  Cf.,  Gard- 
ner V.  Smith  (1859),  7  Mich. 
410;  74  Amer.  Dec.  722.  That 
the  contractors  may  be  hable  over 


to  the  employing  company  for  any 
damages,  does  not  relieve  the  cor- 
poration from  its  primary  liability 
in  these  cases.  Lesher  v.  Wa- 
bash, etc.,  Co.  (1852),  14  Ills. 
85;  56  Amer.  Dec.  494;  Hinde 
V.  Wabash,  eta,  Co.  (1853),  15 
Ills.  12. 

"  Taylor,  etc.,  R.  v.  Warner 
(1895),  88  Tex.  Civ.  App.  642; 
31  S.  W.  66;  32  Id.  868. 


employer's  exception.vl  liability. 


219 


was  erroneous  as  not  applying  to  the  evidence. ^^  On  the 
second  appeal,  this  aspect  of  the  defendant's  liability  was 
not  commented  on,  but  recovery  was  allowed  on  the  ground 
of  the  company's  having  exercised  a  reserved  power  to 
select  the  location  of  the  crossing."' 

On  the  other  hand,  it  has  been  held  that  a  railway  com- 
pany is  not  liable  for  damages  which  result  through  the 
negligent  management  of  one  of  its  trains,  used  and  con- 
trolled by  contractors  for  the  construction  of  its  road,  in 
their  work  of  construction  on  a  portion  of  the  road  which 
they  have  built  and  not  yet  turned  over  to  the  railway  com- 
pany. ^^      So,    cases    exempt    the    railroad    company,    even 


"^Same  (1895),  88  Tex.  Civ. 
App.  642;  32  S.  W.  868. 

"Same  (1899).  92  Tex.  535;  50 
S.  W.  120;  see,  also,  same  case 
(1900).  60  S.  W.  442. 

"  Cunningham  v.  Internation- 
al R.  Co.  (1879),  51  Tex.  503;  32 
Amer.  Rep.  632;  Houston,  etc.,  R. 
V.  Meador  (1878),  50  Tex.  11, 
87;  Houston,  etc.,  R.  v.  Van  Bay- 
less  (1876),  1  Wills  (Tex.  Civ. 
App.),  247.  The  principle  that 
a  railroad  cannot  delegate  to  an 
employee  its  charter  rights  and 
privileges  so  as  to  exempt  it  from 
liability,  does  not  extend  to  the 
use  of  the  ordinary  ways  and 
means  for  the  construction  of  the 
road,  but  to  the  use  of  such  ex- 
traordinary powers  only  as  the 
company  itself  could  not  exercise 
without  having  first  complied  with 
the  conditions  of  the  legislative 
grant  of  authority.  Cunningham 
V.  Intern.\tion.\l  R.  Co.,  supra. 
Where  the  plaintiff  was  being 
conveyed  in  a  caboose  on  a  regu- 
lar ticket  issued  by  the  employees 


of  a  contractor  engaged  in  con- 
structing a  railroad  and  was  in- 
jured, the  railroad  was  held  not 
liable.  Union  Pacific  Railroad  v. 
House  (1871),  1  Wyo.  27.  It  is 
error  to  give  a  charge  to  the  jury 
which  bases  the  responsibility  of 
the  defendant  upon  the  isolated 
fact  that  the  contractor  was 
transporting  freight  and  passen- 
gers for  a  reward  on  a  finished 
portion  of  the  line ;  for  such  fact 
would  be  insufficient  to  warrant 
the  inference  thus  drawn  from  it, 
if  it  should  be  shown  eitlier  that 
I  he  contractor  was  operating  that 
particular  section  of  the  road  as 
a  means  of  furthering  the  con- 
struction of  the  unfinished  part, 
or  that,  although  the  contractor 
might  have  been  transporting 
freight  and  passengers  under  an 
arrangement  which  did  not  avail 
to  exempt  the  railroad  company 
from  liability  for  the  contractor's 
negligence,  while  he  was  render- 
ing that  service,  yet  he  exercised 
at  the  same  time,  in  respect  to  the 


220       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


though  the  contractor  for  constructing  the  road  is  an  in- 
corporated company  and  operates  the  road  for  traffic,  since 
the  hability  of  the  raih'oad  company  does  not  attach  until 
it  goes  into  possession  and  control  of  the  road. 


18 


Sec.  119.     Same,  Contractor  in  Control  at  Time  of  Injury. 

There  is  a  line  of  authority  to  the  effect  that  where  a  con- 
tractor in  the  construction  of  a  road,  was  in  the  exclusive 
possession  thereof,  and  at  the  time  the  injuries  were  in- 
flicted the  railroad  company  had  no  control  of  the  road,  the 
railroad  company  is  not  responsible  for  injuries  inflicted 
bv  the  contractor  or  his  employees.^-' 


work  of  construction,  an  inde- 
pendent occupation  and  was  not 
the  agent  of  the  company  while 
discharging  the  functions  incident 
to  that  position.  Rome,  etc.,  R. 
V.  Chasteen  (1889),  88  Ala.  591; 
7  So.  94;  40  Amer.  &  Eng.  R. 
Cas.  559.  Where  an  independent 
contractor  engaged  in  cutting 
wood  for  a  railroad  company 
owns  his  own  cooking  car  and  it 
is  placed  by  the  company  on  a 
spur  track  to  enable  the  con- 
tractor to  do  his  work  convenient- 
ly, and  a  fire  is  communicated 
from  it,  causing  damage  to  a 
third  person,  the  railroad  com- 
pany is  not  liable.  Le.\vitt  v. 
B.^NGOR,  ETC.,  R.  (1897),  89  Me. 
509;  36  Atl.  998;  36  L.  R.  A. 
382;  7  Am.  &  Eng.  R.  Cas.  354; 
1  Am.  Neg.  R.  605,  criticised  in 
Thomps.  Neg.,  Sec.  656. 

"Chattanooga,  etc.,  R.  v. 
Whitehead  (1892),  89  Ga.  190;  15 
S.  E.  44;  Atchison,  etc.,  R.  v. 
Davis    (1885),    24    Kans.    209;    8 


Pac.  530;  Kansas  Central  R.  v. 
Fitzsimmons  (1877),  18  Kans.  34; 
Burton  v.  Galveston,  etc.,  R. 
(1884),  61  Tex,  526;  21  Am.  & 
Eng.  R.  Cas.  218;  Chicago,  etc., 
R.  v.  Yarb rough  (1896,  Tex.  Civ. 
App.),  35  S.  W.  422;  Dallas,  etc., 
R.  V.  Able  (1888),  72  Tex.  150;  9 
S.  W.  871;  37  Am.  Neg.  R.  Cas. 
453. 

^*  Kansas  Central  R.  v.  Fitz- 
simmons (1877),  18  Kans.  34. 
This  was  an  action  for  injuries 
to  a  child  by  a  turntable  used  in 
operating  a  railroad,  which  was 
still  in  the  contractor's  possession 
by  whom  it  was  being  operated, 
and  used  for  carrying  passengers 
and  freight;  an  instruction  that  if 
the  turntable  and  road  were  in  the 
possession  of  and  operated  by  the 
construction  company  only,  the 
railroad  company  was  not  liable, 
but  if  the  construction  company  had 
possession  of  the  road  and  was 
operating  it  for  general  purposes, 
the    company   was    liable    for   the 


employer's  exceptional  llvbility. 


221 


Sec.  120.     Same,    Contractor    Negligently    Managing    Con- 
struction Train. 

A  railroad  company  has  been  held  not  answerable  in 
damages  for  the  negligent  management,  by  an  independent 
contractor  or  his  servants,  of  a  construction  train  employed 
by  him  in  doing  the  work  of  constructing;  unless  it  allows 
the  contractor  to  assume  its  franchises  of  carrying 
passengers.^" 

Sec.  121.     Same,  Presumption  as  to  Direction  by  Employer. 

In  Texas  it  is  held  that  the  fact  that  an  engineer  of  a 
railroad  company  has  no  authority  over  the  contractors 
engaged  for  the  construction  of  a  highway  crossing,  except 
to  see  that  it  is  constructed  according  to  the  agreed  speci- 
fications, does  not  show  that  the  company  itself  did  not 
have  such  control  over  the  contractors  as  would  make  the 
company  liable  for  their  negligence  in  constructing  a  cross- 
ing at  a  place  which  was  not  a  public  highway.^^     In  Ala- 


injuries,  was  considered  erroneous 
as  prejudicial  against  the  railroad 
company.  Judge  Brewer,  now  of 
the  United  States  Supreme  Court, 
dissented.  A  railroad  company 
was  exonerated  from  liability  for 
the  drowning  of  a  boy  in  a  pool 
of  water  formed  by  a  heavy  storm 
against  an  embankment,  con- 
structed by  an  independent  con- 
tractor and  still  in  his  possession 
and  under  his  uncompleted  con- 
tract. Charlebois  v.  Gogebic,  etc., 
R.  (1892),  91  Mich.  59;  51  N.  W. 
812. 

^  Scarborough  v.  Alabama,  etc., 
Railroad  (1891),  74  Ala.  497;  10 
So.  316;  St.  Louis,  etc.,  R.  v. 
Willis  (1888).  38  Kans.  330;  16 
Pac.  728;  33  Am.  &  Eng.  Ry.  Cas. 


(N.  S.),  48;  Hitte  v.  Republican, 
etc.,  R.  (1886).  19  Nebr.  620;  28 
N.  W.  284;  29  Am.  &  Eng.  R. 
Cas.  586;  Kansas  City,  etc.,  R.  v. 
Fitzsimmons  (1877),  18  Kans.  34. 
See,  aLso.  Atchison,  etc.,  R.  v. 
Davis  (1835),  34  Kans.  202;  8 
Pac.  530;  St.  Louis,  etc.,  R.  v. 
Ritz  (1883).  30  Kans.  31;  2  Pac. 
27;  McCafferty  v.  Spuvte.v  Duy- 
viL,  ETC.,  R.  (1874),  61  N.  Y.  178; 
19  Amer.  Rep.  267;  Pawlet  v. 
Rutland,  etc..  R.  (1S55).  23  Vt. 
545;  and  see  ante,  Sees.  117,  118. 
"'  Taylor,  etc.,  R.  v.  Warner 
(1895),  88  Tex.  642.  648;  31  S. 
W.  65;  32  Id.  858.  Cf.,  s.  c. 
(1899),  92  Tex.  535;  50  S.  W. 
120;   (1900),  60  S.  W.  442. 


222       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

bania  it  is  held  that  a  raih-oad  company  is  responsible  in 
damages  for  every  wrong  done  by  a  contractor  or  sub- 
contractor within  the  limits  of  his  duty  in  grading  the  road- 
bed of  the  company,  on  the  ground  that  such  grading  is, 
in  conformity  to  common  knowledge,  conclusively  pre- 
sumed to  have  been  done  pursuant  to  the  direction  of  the 
company  given  through  its  engineer.-^ 

Sec.   122.     Same,  Contractor  Killing  Cattle. 

On  the  ground  that  they  were  trespassers,  railroad  com- 
panies have  been  held  liable  to  the  owners  of  cattle  which 
were  run  over  and  killed  by  the  construction  trains  used  by 
the  contractors  in  building  their  roads.^^  An  Indiana 
statute  making  companies  owning  railroads  liable  jointly 
and  severally  with  the  lessees,  assignees,  receivers,  and 
"other  persons  running  or  controlling  the  road"  for  stock 
killed,  was  held  to  include  contractors,  even  though  employed 


=' Alabama,  etc.,  R.  v.  Coskey 
(1890),  92  Ala.  254;  9  So.  202; 
Alabama,  etc.,  R.  v.  Williams 
(1890),  92  Ala.  277;  9  So.  203. 
Tn  such  cases  a  contractor  is  re- 
garded as  the  agent  or  servant  of 
the  corporation  employing  him  if 
the  work  involves  the  exercise  of 
a  charter  privilege  or  power  of 
the  corporation  and  which  he 
could  not  have  exercised  inde- 
pendently of  its  charter.  Su- 
burban, etc.,  R.  V.  Balkwill  (1900), 
94  Ills.  App.  454;  TaJ^lor,  etc.,  R. 
V.  Warner,  supra  (1900),  60  S. 
W.  442,  Texas.  Evidence  that 
defendant's  railway  was  in  opera- 
tion at  the  time  and  that  a  con- 
tractor was  taking  out  the  old 
rails    and    putting    in    new    ones 


justified  a  finding  that  the  de- 
fendant was  responsible  for  rails 
left  in  the  street  where  there  was 
no  evidence  offered  by  the  de- 
fendant to  prove  the  relation  of 
the  contractor  to  it  was  an  inde- 
pendent one.  Slayton  v.  West 
End  Street  R.  Co.  (1899,  Mass.), 
6  Amer.  Neg.  Rep.  289. 

^  Illinois,  etc.,  R.  v.  Finnigan 
(1859),  21  Ills.  645;  Chicago,  etc., 
R.  V.  Whipple  (1859),  22  Ills.  105. 
Cf.,  Illinois,  etc.,  R.  v.  Kanouse 
(1866),  39  Ills.  272;  89  Amer. 
Dec.  307 ;  Toledo,  etc.,  R.  v.  Rum- 
bold  (1866),  40  Ills.  143;  B.^ls- 
LEY  v.  St.  Louis,  etc.,  R.  (1886), 
119  Ills.  68;  8  N.  E.  859;  59  Amer. 
Rep.  784. 


employer's   exceptional    LLVBILITV. 


223 


by  another  company,  running  a  train  f)n  defcnrlant's  tracks, 
with  defendant's  consent.^* 

Sec.  123.     Same,  Contractor  Failing  to  Fence. 

Where  there  is  a  ])ubhc  (hity  resting  upon  a  corporation 
it  can  not  discharge  this  duty  by  any  agreement  which  it 
may  make  with  an  undertaker  of  the  work;  thus,  a  raih'oad 
company  can  not,  by  a  contract  with  a  private  person  to 
make  openings  in  its  fence  for  private  purposes,  reheve 
itself  from  its  duty  to  the  general  public  to  keep  the  road 
securely  fenced  except  at  private  crossings,  and  its  failure 
to  do  so  renders  it  liable  for  damages  resulting  to  all  per- 
sons except  the  contracting  person.^^  Where  a  railroad 
company  failed  to  comply  with  a  statute  requiring  railway 
companies  and  their  agents  to  erect  and  maintain  fences 
along  the  line  of  the  road,  the  employing  railroad  was  de- 
clared liable,   in  a  dictum. ^'^     It  was  held  in  an  Alabama 


'*  Hney  v.  Indianapolis,  etc.,  R. 
(1873),  45  Ind.  320.  Compare 
Rome,  etc..  R.  v.  Ch.\steen 
(1889),  88  Ala.  591;  7  So.  94; 
40  Amer.  &  Eng.  R.  Cas.  348. 

"Wabash,  etc.,  R.  v.  William- 
son (1891).  3  Ind.  .^pp.  190;  29 
N.  E.  455.  A  railroad  does  not 
perform  its  statutory  duty  by 
merely  contracting  with  another 
person  to  erect  a  fence  required 
by  the  statute,  if  the  performance 
itself  is  insufficient.  Gill  v.  At- 
lantic, etc.,  R.  (1875),  27  Ohio 
S.  240;  Shepard  v.  Buffalo,  etc., 
R.  (1866),  34  N.  Y.  641;  New 
Albany,  etc.,  R.  v.  Maiden  (1859), 
12  Ind.  10;  Chicago,  etc.,  R.  v. 
Hutchinson  (1891).  45  Kans.  185. 
That  a  railway  company  has  em- 
ployed  a   contractor   to    grade   its 


road  bed  will  not  release  it  from 
liability  for  damages  caused  by 
its  failure  to  keep  up  the  fences 
along  the  right  of  way,  to  crops 
injured  by  cattle  which  escaped 
from  such  right  of  way.  Pound 
V.  Port  Huron,  etc.,  R..  (1884), 
54  Mich.  13;  19  N.  W.  570. 

^Gardner  v.  Smith  (1859),  7 
Mich.  410;  74  Amer.  Dec.  722.  in 
which  case  the  contractor's  lia- 
bility was  established.  An  Illinois 
statute  providing  for  liability  for 
failing  to  fence  railroad  tracks 
within  six  months  after  the  road 
was  open  for  use  was  held  to 
apply  where  trains  were  run  by 
the  contractors  for  construction 
purposes.  Rockford,  etc.,  R.  v. 
Wells   (1872).  66  Ills.  321. 


224       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

case  that  the  owner  of  cattle  could  not  recover  as  against 
a  railroad  company  where,  owing  to  the  negligence  of  a 
contractor  in  constructing  defective  stock  gaps  and  throw- 
ing down  fences,  his  cattle  strayed  onto  the  land  adjacent 
to  the  track  and  were  injured  and  killed.^'^ 

Sec.  124.     Same,  Contractor  or  Servant  Trespassing. 

Where  a  corporation  has  been  authorized  by  law  to  enter 
upon  certain  premises,  and  take  therefrom  material  for  the 
construction  of  public  works  by  making  compensation 
therefor,  and  the  corporation  afterwards  contracts  with 
others  to  do  the  work,  who  avail  themselves  of  the  authority 
given  to  take  material,  the  corporation  will  be  liable  there- 
for, although  the  contractors  were  bound  by  their  contract 
to  furnish  the  material  and  do  the  work  for  a  specified 
price.  Contractors  in  such  cases  are  deemed  servants  of 
the  corporation ;  the  work  is  done  by  it ;  and  under  authority 
of  law;  the  immunities  and  liabilities  of  the  charter  attach 
to  the  company  and  it  will  be  held  accountable.-^     And 


"Alabama,  etc.,  R.  v.  Martin 
(1893),  100  Ala.  511;  14  So.  401. 
A  railroad  company  was  held  li- 
able to  the  lessee  of  a  farm  for 
damages  to  crops  caused  by  the 
acts  of  independent  contractors  in 
throwing  down  fences  and  failing 
to   erect  cattle   guards.     Clark  v. 

St.   Louis,    etc.,   R.    ( ,   Ark.), 

44  Amer.  &  Eng.  R.  C.  (N. 
S.),  39. 

^Lesher  v.  W.'\bash,  etc.,  Co. 
(1852),  14  Ills.  85;  56  Amer.  Dec. 
494;  Hinde  v.  Wabash,  etc.,  Co. 
(1853),  15  Ills.  72.  The  "salu- 
tary doctrine"  of  Lowell  v.  Bos- 
ton, ETC.  R.  (1839),  23  Pick. 
(Mass.),   24;    34  Amer.   Dec.   33, 


as  Judge  Thompson  calls  it  in  his 
Commentaries  on  Negligence,  Sec. 
670,  "has  frequently  been  affirmed 
by  other  courts."  Lesher  v.  Wa- 
bash, ETC.,  R.,  supra;  Hinde  v. 
Wabash,  etc.,  R.,  supra;  Ohio, 
ETC.,  R.  V.  DUNB.\R  (1850),  20 
Ills.  623;  71  Amer.  Dec.  201; 
Chicago,  etc..  R.  v.  McCarthy 
(1358),  20  Ills.  385;  71  Amer. 
Dec.  285;  Illinois,  etc.,  R.  v.  Fin- 
nigan  (1859).  21  Ills.  646;  Illi- 
nois, ETC.,  R.  V.  Kanouse  (1866), 
39  Ills.  272;  89  Amer.  Dec.  307; 
Toledo,  etc.,  R.  v.  Rumbold 
(1866),  40  Ills.  143;  Chicago,  etc., 
R.  V.  Whipple  (1859),  22  Ills.  105; 
Carmen    v.    Steul)enville,    etc.,    R. 


employer's  exceptional  liability. 


225 


where  it  appeared  from  the  evidence  and  the  defendant 
railway  company's  admissions  that  the  contractors  were 
set  to  work  by  the  company's  agents  to  clear  the  right  of 
way  and  construct  its  roadbed  on  land  which  had  not  been 
condemned,  the  railway  company  was  held  liable.-^ 

On  any  theory  of  the  subject,  if  the  railroad  company 
appropriates  the  benefit  of  the  trespass,  it  will  be  liable  to 
the  landowner  on  the  theory  of  ratification.     Thus,  if  the 


(1854),  4  Ohio  St.  399;  Stone  v. 
Cheshire  R.  (1849),  19  N.  H. 
427;  51  Amer.  Dt;c.  192;  Tarry 
V.  Ashton  (1876),  1  Q.  B.  D.  314; 
Brackett  v.  Lubke  (1862),  4 
Allen  (Mass.),  138;  81  Amer. 
Dec.  694;  Regina  v.  Stephens 
(1865),  L.  R..  1  Q.  B.  702;  Rex 
V.  Medley  (1834),  6  Car.  &  P. 
292. 

^  Chicago,  etc.,  R.  v.  Watkins 
(1890),  43  Kans.  50;  22  Pac.  985; 
40  Am.  &  Eng.  R.  Cas.  499. 
Where  land  had  heen  appropri- 
ated by  the  contractor  for  the 
purposes  of  the  work  of  con- 
structing a  railway,  it  was  held 
that  the  person  thus  damaged 
could  recover  directly  from  the 
company.  Vermont,  etc.,  R.  v. 
Baxter  (1850),  22  Vt.  365.  Cf., 
Lesher  v.  Wabash,  etc.,  R. 
(1852),  14  Ills.  85;  56  Am.  Dec. 
494,  materials  for  dam  taken  from 
adjoining  land  under  corporate 
authority  and  the  company  held 
answerable.  To  the  same  effect, 
Hinde  V.  Wabash,  etc.,  Co.  (1S53), 
15  Ills.  72.  And  it  is  no  defense 
that  the  defendant  company  Ii  id 
nothing  to  do  with  employing  the 
hands  doing  the  work  but  that 
they  were  employed  and  paid  by 


the  contractors.  Cairo,  etc.,  R.  v. 
Woolsey  (1877),  85  Ills.  370.  A 
railroad  company  by  whose  di- 
rection a  contractor  for  the 
construction  of  its  road  enters 
and  builds  the  road  upon  the  laid 
which  it  has  acquired  without 
having  condemned  an  existing 
leasehold  interest,  or  acquired 
that  interest  in  any  other  manner, 
is  liable  as  a  joint  tortfeasor 
with  the  contractor  and  his  serv- 
ants, for  damages  done  by  them 
in  the  prosecution  of  the  work,  to 
the  lessee's  crops ;  Ullman  v. 
Hannibal,  etc.,  R.  (1877),  67  Mo. 
118.  distinguished  from  Clark  v. 
Hannibal,  etc.,  R.  (1865),  35  Mo. 
202.  For  other  cases  as  to  a  rail- 
road company's  non-liability  for  a 
contractor's  collateral  tre^p  iss,  see 
note  to  65  L.  R.  A.  655.  It  is 
said  that  it  may  be  stated  as  a 
general  rule,  that  as  between  a 
railroad  company  and  a  contrac- 
tor for  the  construction  of  the 
road,  the  railroad  company  is  li- 
able for  tlie  acts  of  the  con- 
tractor's employees  in  entering 
upon  and  d'gging  up  the  lands  of 
others  in  the  course  of  c^n=t^uc- 
tion.  Cairo,  etc..  R.  v.  Wo,il>ey 
(1877),  85  Ills.  370. 


226       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

contractor  makes  a  wrongful  appropriation  of  the  land  of 
another,  it  will  be  no  answer  to  his  claim  for  damages 
against  the  railroad  company  to  aver  that  the  appropriation 
was  made  by  a  contractor  of  the  company  or  by  a  receiver 
of  such  contractor.  But  if  the  railroad  company  adopts 
the  act  of  the  contractor  and  the  receiver  in  appropriating 
the   land,    it  must  pay   a  just   compensation  to  the   land- 


owner 


30 


Where  contractors  employed  to  construct  a 
railroad,  tore  down  the  fences  of  a  proprietor  without  erect- 
ing any  temporary  barriers,  gates  or  cattle-guards,  so  that 
cattle  came  into  his  field  and  destroyed  his  crops,  it  was 
held  that  the  railroad  company  must  answer  to  him  for  the 
damages  on  the  ground  that  the  contractors  were  exercis- 
ing the  franchises  of  the  company  and  were  its  servants. ^^ 
In  cases  in  which  railroad  companies  are  held  liable  for 
trespasses  committed  by  independent  contractors  employed 
by  them,  they  may  be  bound  to  respond  therefor  in  exem- 
plary damages  if  the  trespasses  are  wanton  and  malicious. ^^ 
Several  American  courts  hold  that  railroad  companies 
are  not  liable  for  the  unauthorized  trespasses  of  indepen- 
dent contractors  whom  they  employ  to  construct  or  repair 


'■^  Bloomfield,  etc..  R.  v.  Grace 
(1887),  112  Ind.  128;  13  N.  E. 
630.  On  the  theory  of  ratifica- 
tion, a  new  or  reorganized  rail- 
road companjf  subscribes  to  the 
rights  of  the  old  one,  must  pay 
for  any  land  appropriated  by  its 
predecessor  and  not  paid  for  by 
it.  Lake  Erie,  etc.,  R.  v.  Griffin 
(1883),  92  Ind.  487;  (1886),  107 
Ind.  464;  Bloomfield,  etc.,  R.  v. 
Van  Slike  ( 1886) ,  107  Ind.  480.  A 
railroad  company  is  especially  li- 
able where  after  its  contractor 
enters  on  another's  lands,  it  there- 
after uses  and  occupies   the   land 


so  seized  in  the  operation  of  its 
railroad.  Bloomfield,  etc.,  R.  v. 
Grace,  supra.  If  plaintiffs  stood 
by  and  permitted  defendant's  con- 
tractors to  enter  on  or  waste  the 
soil  adjacent  to  defendant's  right 
of  way  without  objection,  an 
equity  court  may  refuse  them  dam- 
ages therefor.  Murtfelt  v.  New 
York,  etc.,  R.  (1886),  102  N.  Y. 
703 ;  25  Amer.  &  Eng.  R.  Gas.  144. 

"^  Chicago,  etc.,  R.  v.  McCar- 
thy (1858),  20  Ills.  385;  71  Amer. 
Dec.  285. 

'-Rockford,  etc.,  R.  v.  Wells 
(1872),  66  Ills.  321. 


employer's  exceptional  liability. 


227 


the  railroads  or  other  works,  where  the  relation  of  such 
contractors  to  the  railroad  company  is  such  that  an  ordinary 
proprietor  would  not  be  liable  in  a  similar  case.^^  Thus  it 
has  been  held  that  a  railroad  company  is  not  liable  for  the 
dumping  of  earth  by  an  independent  contractor  engaged  in 
constructing  an  embankment,  on  the  plaintiff's  land  outside 
of  the  company's  right  of  way.^^  Where  a  subcontractor 
on  a  railway  committed  a  trespass  in  procuring  timber  on 
land  not  belonging  to  the  company,  the  latter  was  held 
not  liable  to  the  owner  of  the  land.^^ 

The  decisions  exempting  railroad  companies  from  liability 
for  trespasses  committed  by  independent  contractors  em- 
ployed by  them  "seem  to  involve,  in  many  cases,  a  denial 
of  justice  to  property  owners  through  or  along  whose 
property  railways  are  constructed.  Railway  companies  in 
building  their  roads,  employ  non-residents  of  the  particular 
districts  as  contractors  for  that  purpose.  They  are  here  to- 
day and  away  tomorrow.  In  addition  to  this,  they  are  often 
insolvent.      What  is  still  worse,  they  are  often  composed 


*'St.  Louis,  etc.,  R.  v.  Knott 
(1891),  54  Ark.  424;  16  S.  W.  9; 
Chicago,  etc.,  R.  v.  Ferguson 
(1893),  3  Colo.  App.  414;  33  Pac. 
684;  13  Am.  Neg.  Cas.  647,  n; 
Wallace  v.  Newcastle,  etc.,  R. 
(1891),  11  Penn.  Co.  Ct.  347. 

"Hughe  s  V.  Railroad  Co. 
(1883),  39  Ohio  St.  461;  15  Am. 
&  Eng.  R.  Cas.  100.  Where  the 
contractor  in  the  course  of  con- 
struction of  the  road,  unlawfully 
and  willfully  seizes  upon  and  ap- 
propriated uncondcmned  land,  the 
railroad  company  is  not  liable 
therefor  unless  it  be  shown  that 
it  subsequently  ratified  such  ac- 
tion. Waltcmeyer  v.  Wisconsin, 
etc.,  R.    (1887),  71   Iowa,  626;  33 


X.  \\\  140;  30  Am.  &  Eng.  R. 
Cas.  384.  It  has  been  held  in 
Canada  that  a  railroad  company 
is  not  liable  for  an  injury  to  ad- 
jacent property  caused  by  the 
wrongful  act  of  an  independent 
contractor  in  taking  earth  to  con- 
struct the  embankments  from  a 
place  and  in  a  manner  not  author- 
ized by  the  contract.  Kerr  v. 
Atlantic,  etc.,  R.  (1895),  25  Can. 
(S.  C),  197. 

"  Parker  v.  Waycross,  etc.,  R. 
(1888),  81  Ga.  387;  8  S.  E.  871. 
Cf.,  Waltemcyer  v.  Wisconsin, 
etc.,  R.  (1887),  71  Iowa,  626;  33 
N.  W.  140;  30  Am.  &  Eng.  R. 
Cas.  384,  hauling  earth  away  be- 
yond ricjht  of  wav. 


228       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

of  mere  dummy  corporations,  organized  by  the  railroad 
companies  themselves  for  the  purpose  of  escaping  liability 
for  wrongs  done  in  the  construction  of  the  road.  As  soon 
as  these  dummy  corporations  have  served  their  purpose 
they  are  dissolved,  and  property  owners  who  are  injured 
by  their  trespasses  are  left  remediless.  The  true  theory 
in  all  these  cases  is  that  of  the  Illinois  Supreme  Court 
viz. :  Whenever  the  independent  contractor,  in 
order  to  prosecute  his  work  under  his  contract,  must  ex- 
ercise in  whole  or  in  part  a  franchise  granted  by  the  legis- 
lature to  his  employer,  the  railroad  company,  the  company 
must  answer  for  his  torts,  because  it  is  bound  to  see  to  the 
correct  execution  of  the  powers  conferred  on  it  by  the 
legislature.  An  enjoinment  of  this  doctrine  makes  the 
company  liable  for  all  manner  of  trespasses  of  the  contrac- 
tor done  while  prosecuting  the  work  under  his  contract; 
because  in  every  such  case  he  is  acting  in  virtue  of  the  fran- 
chise conferred  by  the  legislature  upon  the  railroad  com- 
pany, namely,  the  franchise  of  building  a  railroad.  Without 
the  possession  of  that  franchise,  the  railroad  company  could 
not  be  there  by  its  own  servants,  nor  could  it  be  there  by 
an  independent  contractor.  In  such  a  case  persons  em- 
ployed by  the  company  to  exercise  its  powers  are  deemed, 
in  law,  to  be  its  servants  or  agents,  and  it  is  answerable 
for  their  trespasses. "^'^ 

Sec.  125.     Same,  Duty  to  Traveler  as  to  Excavations. 

In  an  early  Massachusetts  case  following  Bush  v. 
Steinman  ^^  a  railroad  company  was  compelled  to  pay 
damages  to  a  traveler  who  had  been  injured  in  the  night 

^Thompson  on  Negligence,  Sec.       Louis,  etc.,  R.  v.  Drennan  (1887), 
672,    citing   Rockford,    etc.,    R.    v.       26  Ills.  App.  263. 
Wells    (1872),    66    Ills.    321;    St.  "(1799),  I.  B.  &   P.  404.     Re- 

ported in  full.  Sec.  48,  ante. 


EMPLOYER  S  EXCEPTIONAL   LIABILITY. 


229 


time  by  reason  of  the  fact  that  the  servants  of  a  contractor 
with  the  corporation,  had  removed  and  neglected  to  re- 
place certain  barriers  which  had  been  placed  to  protect 
travelers  at  a  point  where  a  deep  cut  had  been  made  across 
the  highway  in  excavating  for  the  company's  roadbed.^® 
Where  a  railroad  company  by  law  is  charged  with  a  duty 
to  the  public,  it  cannot  excuse  itself  from  a  performance 
of  such  duty  by  an  independent  contract  with  other  parties ; 
and  where  it  is  made  by  law  the  duty  of  a  railroad  company 
to  keep  a  highway  in  reasonably  safe  condition  for  travel 
at  the  point  where  the  highway  intersects  such  railroad 
right  of  way  or  where  the  law  makes  it  the  duty  of  a  rail- 
road company,  in  making  alterations  by  means  of  which  the 
highway  may  be  obstructed,  to  provide  and  keep  in  good 
order  suitable  temporary  ways  to  enable  travelers  to  avoid 
or  pass  such  obstructions,  and  where  a  party  is  injured  in 
consequence  of  the  failure  of  the  railroad  company  to  dis- 
charge that  duty,  such  company  can  not  escape  liability  by 
showing  that  the  work  was  done  by  other  parties  under 
an  independent  contract.^® 

Sec.  126.     Same,  Lessee,  Operating  Road. 

It  is  on  the  same  principle  that  the  courts  generally  hold 
that  a  railroad  company  can  not  absolve  itself  from  liability 


"Lowell  v.  Boston,  etc.,  R. 
(1839),  23  Pick.  (Mass.),  24;  34 
Amer.  Dec.  33,  per  Shaw,  C.  J. 
In  a  later  Massachusetts  case  a 
railroad  company  breaking  up  the 
street  for  its  own  benefit  and 
profit  was  said  to  stand  under  a 
primary  obligation  not  to  do  it 
so  as  to  constitute  a  nuisance  dan- 
gerous to  the  public,  and  it  wa<5, 
therefore,  no  defense  to  an  action 
brought    by   a   traveler    who    had 


been  injured  by  it,  that  the  work 
was  delegated  to  an  independent 
contractor.  Woodman  v.  Metro- 
politan R.  Co.  (18S9),  149  Mass. 
335;  21  N.  E.  482;  4  L.  R.  A.  213; 
6  Rail.  &  Corp.  Law  J.  72;  14 
Amer.  St.  Rep.  427;  12  Am.  Neg. 
Cas.  80. 

"^  Choctaw,  etc.,  R.  v.  Wilker 
(1906),  16  Okla.  384;  84  Pac. 
1086;  3  L.  R.  A.  (N.  S.),  595; 
46  Am.  &  Eng.  R.  Cas.  759. 


230       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

for  the  wrongful  acts  or  omissions  of  persons  operating  its 
road  by  the  fact  of  having  transferred  its  corporate  powers 
to  other  parties,  as  by  leasing  its  road  and  franchises  to 
them,  except  by  special  statutory  authority;  the  theory 
being  that  to  permit  such  a  devolution  of  public  duties  and 
responsibilities  would  be  contrary  to  public  policy. ^*^  In  the 
United  States  the  rule  prevails  that  a  railroad  corporation 
can  not  escape  the  performance  of  any  duty  or  obligation 
imposed  by  its  charter  or  the  general  law  of  the  state  by 
a  voluntary  surrender  of  its  road  into  the  hands  of  lessees, 
and  the  operation  of  the  road  does  not  change  the  relations 
of  the  original  company  to  the  public.^^     The  lessor,  by 


^Balsley  v.  St.  Louis,  etc.,  R. 
(I8S6),  119  Ills.  68;  8  N.  E.  859; 
59  Amer.  Rep.  784;  5  Thomps. 
Corp.,  Sees.  5584-5,  6293. 

"  Washington,  etc.,  R.  Co.  v. 
Brown  (1873),  17  Wall.  (U.  S.), 
445 ;  Driscoll  v.  Norwich,  etc.,  R. 
(1894),  65  Conn.  230;  32  Atl. 
354;  Virginia,  etc.,  R.  v.  Wash- 
ington (1890),  86  Va.  629;  10  S. 
E.  927;  7  L.  R.  A.  344;  43  Amer. 
&  Eng.  R.  Cas.  688;  Whitney  v. 
Atlantic,  etc.,  R.  (1857),  44  Me. 
362;  69  Amer.  Dec.  103;  Stearns 
V.  Atlantic,  etc.,  R.  (1858),  46 
Me.  116;  Nugent  v.  Boston,  etc., 
R.  (1888),  80  Me.  62;  12  Atl. 
797;  6  Amer.  St.  Rep.  151;  Nel- 
son V.  Vermont,  etc.,  R.  (1854), 
26  Vt.  717;  62  Amer.  Dec.  614; 
Clement  v.  Canfield  (1856),  28 
Vt.  302;  Abbott  v.  Johnstown, 
etc.,  R.  (1880),  80  N.  Y.  27;  36 
Amer.  Rep.  572;  Galveston,  etc., 
R.  V.  Garteiser  (1895),  9  Tex. 
Civ.  App.  456;  Central,  etc.,  R.  v. 
Morris  (1887),  68  Tex.  59;  3  S. 
W.  457;  International,  etc.,  R.  v. 


Kuehn  (1888),  70  Tex.  582;  8  S. 
W.  484;  International,  etc.,  R.  v. 
Eckford  (1888),  71  Tex.  274;  8 
S.  W.  679;  East  Line,  etc..  R.  v. 
Lee  (1888),  71  Tex.  538;  9  S.  W. 
604;  Trinity,  etc.,  R.  v.  Lane 
(1891),  79  Tex.  643;  15  S.  W. 
477;  16  S.  W.  18;  Buckner  v. 
Richmond,  etc.,  R.  (1895),  72 
Miss.  873;  18  So.  449;  McCoy  v. 
Kansas  City,  etc.,  R.  (1889),  36 
Mo.  App.  445;  National  Bank  v. 
Atlanta,  etc.,  R.  (1886),  25  S.  C. 
220.  In  Illinois,  the  precise  rule 
is  uncertain.  Compare,  Ohio, 
etc.,  R.  v.  Dunbar  (1850),  20 
Ills.  623;  71  Amer.  Dec.  291  •, 
Chicago,  etc.,  R.  v.  Hart  (1902), 
104  Ills.  App.  57;  Chicago,  etc., 
R.  v.  Whipple  (1859),  22  Ills. 
105 ;  Peoria,  etc.,  R.  v.  Lane 
(1876),  83  Ills.  448;  W.\bash, 
ETC.,  R.  V.  Shacklett  (1S83),  105 
Ills.  364;  44  Amer.  Rep.  791; 
Chicago,  etc.,  R.  v.  Meech  (1895), 
163  Ills.  305;  45  N.  E.  220;  Chi- 
cago, etc.,  Co.  V.  Stanford  (1902), 
104    Ills.    App.    99;    Pennsylvania 


employer's  exceptional  ll\bility. 


231 


accepting  its  charter  assumes  the  oljhgation  to  carry  pas- 
sengers and  freight  safely  over  its  hne.  Should  the  lessee 
fail  to  do  this,  the  lessor  is  liable.''^ 

Regarding  the  effect  of  statutes  authorizing  the  sale  or 
lease  of  a  railroad  company's  equipment  there  is  conflict 
among  the  decisions.  For  a  discussion  of  these  cases,  see 
the  note  by  a  learned  author  to  a  recent  case,  cited  below. ^^ 
Certain  statutory  undertakings  (such  as  an  electric  light 
company,  a  municipal  ferry,  etc.),  have  been  held  to  come 
within  the  rule  holding  railroad  companies  for  the  acts  of 
lessees  engaged  in  operating  the  same.^^ 

The  liability  of  a  railway  company  for  the  torts  of  an- 
other company  operating  its  lines  under  a  lease  executed 
without  any  statutory  authority  has  apparently  not  been  con- 
sidered in  England.  But  that  such  liability  still  attaches  is 
in  full  accord  with  the  rules  established  there  that  a  cove- 
nant to  make  such  a  lease  is  void,  and  that  an  unauthorized 
agreement  amounting  to  a  delegation  of  statutory  authority 
is   likewise    invalid."*^      Liability    for   the   negligence   of   a 


Co.  V.  Ellett  (1890),  132  Ills. 
654;  24  N.  E.  559;  Pittsburg, 
etc..  R.  C.  V.  Campbell  (1877), 
86  Ills.  443,  in  this  and  in  the 
following  case,  the  duty  violated 
was  statutory;  B.alslev  v.  St. 
Louis,  etc.,  R.  (1886),  119  Ills. 
68;  8  N.  E.  859;  59  Amer.  Rep. 
784. 

**East  Line,  etc.,  R.  v.  Cul- 
berson (1888),  72  Tex.  375;  10 
S.  W.  706;  3  L.  R.  A.  557;  13 
Amer.  St.  Rep.  805;  Trinity,  etc.. 
R.  V.  Lane  (1891),  79  Tex.  643; 
15  S.  W.  477;  16  S.  W.  18;  Balti- 
more, ETC.,  R.  V.  P.'vuL  (1895),  143 
Ind.  23;  40  N.  E.  519;  28  L.  R.  A. 
216. 

"•Note  by  Mr.  C.  B.  Labatt  to 
Anderson   v.   Fleming    (1903, 


Ind.),  in  66  L.  R.  A.,  at  p.  144, 
et  seq. 

"  Capital  Electric  Co.  v.  Haus- 
wald  (1898),  78  Ills.  App.  359; 
Duncan  v.  Magistrates,  etc. 
(1877),  Ct.  of  Sess.,  14  Scot.  L. 
R.  603 ;  but  see,  Blackwell  v.  Wis- 
wall  (1855).  24  Barb.  (N.  Y.), 
355. 

'°  On  the  first  rule  see  East 
Anglian  Railroad  v.  Eastern 
Counties  Railroad  (1851),  11  C. 
B.  775;  7  Eng.  R.  &  Corp.  Cas. 
150.  On  the  second,  see  Beman 
V.  Rufford  (1851),  1  Sims  (N. 
S.),  550;  Great  Northern  Rail- 
road V.  Eastern  Counties  Rail- 
road (1851),  9  Hare,  306;  7  Eng. 
R.  &  Corp.  Cas.  643. 


232       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY, 


licensee  running  trains  over  the  licensor's  track  is  imputed 
on  the  same  ground  and  under  the  same  circumstances  as 
in  the  case  of  a  lease.^^'  Where  a  manufacturing  company 
leased  from  a  railroad  company  the  use  of  a  sidetrack  and 
switch,  it  thereby  assumed  the  duty  toward  the  railroad 
company  of  so  managing  the  sidetrack  and  switch  as  not 
to  brins:  its  cars  into  collision  with  those  of  the  railroad 
company,  and  it  can  not  shift  the  performance  of  that  duty 
so  as  to  exonerate  itself  upon  third  persons  whom  it  em- 
ploys to  unload  its  cars.^''^ 


"  Illinois,  etc..  R.  v.  Barron 
(1866),  5  Wall.  (U.  S.),  90.  See, 
also,  Langley  v.  Railroad  Co. 
(1857),  10  Gray  (Mass.),  103; 
York,  etc.,  R.  v.  Winans  (1854), 
17  How.  (U.  S.),  30;  Oregon  R. 
V.  Oregonian  R.  Co.  (1888),  130 
U.  S.  23;  9  Sup.  Ct.  409;  Central 
Transportation  Co.  v.  Pullman 
Palace  Car  Co.  (1891),  139  U.  S. 
62;  11  Sup.  Ct.  478;  Quested  v. 
Newburyport,  etc.,  R.  (1879),  127 
Mass.  204.  Contra,  Miller  v. 
Railroad  Co.  (1890),  125  N.  Y. 
118;  26  N.  E.  35.  "Where  a  rail- 
road is  leased,  both  the  lessor 
and  lessee  are  jointly  and  several- 
ly liable  for  the  negligence  of 
the  latter  in  operating  the  road. 
Central,  etc.,  R.  v.  Wood  (1901), 
129  Ala.  483;  29  So.  776;  Penn- 
sylvania Co.  V.  Sloan  (1888), 
125  Ills.  72;  17  N.  E.  37;  8  Am. 
St.  Rep.  337;  Chicago,  etc.,  R.  v. 
Schmitz  (1904),  211  Ills.  446;  71 
N.  E.  1050;  Logan  v.  North  Caro- 
linaR.  Co.  (1895),  116  N.  C.  940; 
21  S.  E.  959;  Tillett  v.  Norfolk, 
etc.,  R.  Co.  (1896),  118  N.  C 
1031;  24  S.  E.  Ill;  Kinney  v. 
North  Carolina,  etc.,  R.  (1898), 
122    N.    C.    961;    30    S.    E.    313; 


Harden  v.  North  Carolina  R. 
Co.  (1901),  129  N.  C.  354;  40  S. 
E.  184;  85  Am.  St.  Rep.  747;  55 
L.  R.  A.  784;  Harmon  v.  Colum- 
bia, ETC.,  R.  (1888),  28  S.  C.  401; 
5  S.  E.  835,  with  note;  13  Am.  St. 
Rep.  686;  Parr  v.  Spartenburgh, 
ETC.,  R.  (1895),  43  S.  C.  197;  20  S. 
E.  1009;  49  Am.  St.  Rep.  826; 
Cogswell  V.  West  St.,  etc.,  R. 
(1892),  5  Wash.  46;  31  Pac.  411; 
Fisher  v.  West  Virginia,  etc.,  R. 
(1894),  39  W.  Va.  366;  19  S..  E. 
578;  23  L.  R.  A.  758.  But  where 
the  lease  is  sanctioned  by  legisla- 
tive authority  and  the  lessee  is 
given  exclusive  possession  and 
control  of  the  road,  the  lessee  is 
alone  liable.  Pinkerton  v.  Penn- 
sylvania, etc.,  Co.  (1899),  193 
Penn.  St.  229;  44  Atl.  284.  In 
St.  Louis,  etc.,  R.  v.  Trigg 
(1897),  63  Ark.  536;  40  S.  W. 
579,  a  railroad  and  its  receivers 
were  held  jointly  liable  for  a 
nuisance  caused  by  an  embank- 
ment so  negligently  constructed 
as  to  flood  the  plaintiff's  land." 
Cooley  on  Torts,  Student's  Ed., 
p.  97,  ef  scq. 

"  Montgomery,      etc.,      Co.      v. 
Montgomery,   etc.,    R.    (1888),   86 


employer's  exceptional  liability. 


233 


In  one  case  the  doctrine  is  stated  without  quah"fication 
that  the  lessor  of  a  railroad  is  not  liable  to  an  employee  of 
the  lessee  for  injuries  resulting  from  the  use  of  defective 
machinery,  the  same  being  a  part  of  the  leased  property.'** 

Sec.  127.     Same,  Trustee  Operating  Road. 

If  a  railroad  company  devolves  the  execution  of  its 
franchise  upon  trustees  for  mortgage  bondholders,  where 
sucli  trustees  are  not  acting  under  the  order  of  any  court 
but  are  operating  the  road  in  the  name  of  the  company,  it 
remains  liable  for  the  acts  of  such  trustees.^^ 

Sec.  128.    Railroads  Using  Tracks  in  Common. 

Where  there  is  a  mutual  arrangement  for  the  joint  use 
of  terminal  tracks  between  the  company  owning  them  and 
another  company  also  having  a  chartered  right  to  enter 
the  same  city,  they  are  entitled  to  make  use  of  common 
tracks  at  the  terminal  point  and  in  doing  this  the  licensee 


Ala.  372;  5  So.  735.  It  is  settled 
that,  unless  such  a  transfer  has 
been  expressly  authorized  by  stat- 
ute, a  railway  company  does  not 
divest  itself  of  its  liability  to 
third  persons  by  selling,  or  leas- 
ing, its  franchise.  Ricketts  v. 
Birmingham  St.  R.  Co.  (1888), 
85  Ala.  600;  5  So.  353,  in  which 
case  the  plaintiff  was  thrown  to 
the  ground  by  the  sudden  starting 
of  a  street  car. 

**  Buckner  v.  Richmond,  etc.,  R. 
(1895),  72  Miss.  873;  18  So.  449, 
citing  Virginia,  etc..  R.  v.  Wash- 
ington (1890).  86  Va.  629;  10  S. 
E.  927;  43  Amer.  &  Eng.  R.  Cas. 
688;  7  L.  R.  A.  344;  East  Line, 
ETC.,    V.     Culberson     (1888),     72 


Tex.  375;  10  S.  W.  706;  13  Amer. 
St.  Rep.  805;  3  L.  R.  A.  567. 
"This  decision  does  not  seem  to 
conform  to  the  current  of  judi- 
cial authority,"  declares  Judge 
Thompson.  "It  proceeds  upon 
the  ground  that,  without  refer- 
ence to  the  question  whether  the 
lease  was  authorized  or  not,  the 
servant  of  the  lessee  must  look  to 
his  own  master  only,  for  redress 
of  the  injuries  sustained  by  him 
in  the  service.  'To  his  own 
master  he  standeth  or  falleth.' " 
Thomps.  Neg.,  Sec.  669,  note  108. 
"  Wisconsin,  etc.,  R.  .  v.  Ross 
(1892),  142  Ills.  8;  31  N.  E.  412; 
12  Railroad  &  Corp.  Law  J.  81 ; 
34  Amer.  St.  Rep,  49. 


234       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

company  exercises  its  own  franchises  and  not  those  of  the 
licensor,  and  the  latter  is  not  liable  to  its  employes  for  in- 
juries caused  by  the  negligent  use  of  a  common  track  by 
the  employees  of  the  licensee  company.^" 

Sec.  129.    Liability  as  Warehousemen. 

A  railroad  company,  as  a  warehouseman,  is  not  liable  for 
the  destruction  of  goods  by  fire  communicated  from  a  pile- 
driving  engine  which  was  being  operated  by  an  independent 
contractor  engaged  in  repairing  the  company's  wharf.^^ 

Sec.  130.     Street  Railroads. 

A  street  railway  company  is  liable  for  personal  injuries 
caused  by  negligence  in  the  manner  of  guarding  excava- 
tions in  a  street  which  are  necessary  to  the  construction  of 
its  tracks,  although  the  work  is  done  by  an  independent 
-contractor,  but  under  a  permit  from  the  city  to  the  com- 
pany.^^  Thus  an  electric  railroad  company  which  has  let 
to  independent  contractors  the  digging  of  a  certain  number 
of  post-holes  in  a  public  street,  by  a  contract  fixing  the  size 
of  the  holes  and  nothing  more,  is  liable  for  an  injury 
caused  by  falling  into  one  of  the  holes  which  is  completed 
two  or  three  days  before  the  accident.^^ 

Sec.  131.     Carrier's  Duty,  Generally. 

Whatever  the  rule  may  be  in  other  relations,  when  the 
question  involves  the  duty  of  a  common  carrier  toward  his 

«•  Georgia,  etc.,  R.   v.   Friddell  R.  Co.   (1889),  149  Mass.  335;  21 

(1887),  79  Ga.  489;  7  S.  E.  214;  N.    E.   482;    4   L.    R.    A.    213;    6 

11  Amer.  St.  Rep.  444.  Rail.  &  Corp.  Law  J.  72;  14  Amer. 

"Brunswick,    etc.,    Co.   v.  St.  Rep.  427;   12  Am.  Neg.  Cas. 

Brunswick,  etc.,  R.    (1898),   106  80. 

Ga.   270;   39   S.   E.  92;   71   Amer.  ^'Donovan  v.   Oakland,  etc.,  R. 

St.  Rep.  249.  T.   Co.    (1894),    102  Cal.  245;   36 

"^Woodman     v.     Metropolitan  Pac.  516. 


EMPLOYER  S  EXCEPTIONAL  LIABILITY. 


235 


passengers,  the  person  constructing  his  machinery  or  ap- 
ph'ances  becomes  his  alter  ego  and  the  doctrine  of  respon- 
deat superior  applies.  The  question  is  not  one  of  personal 
negligence  of  the  carrier  but  it  is  equally  a  question  of  the 
negligence  of  the  agents  who  constructed  the  machine. 
Thus,  where  the  accident  resulted  from  the  washing  away 
of  the  embankment  of  a  railroad,  caused  by  insufficient 
drainage,  it  was  held  that  the  company  would  not  be  re- 
lieved of  liability,  by  showing  the  fact  that  the  road  was 
constructed  under  the  supervision  of  a  competent  engineer 
and  that  the  drainage  at  the  point  of  the  accident  was  pro- 
vided for  in  a  manner  directed  and  approved  by  him.''^ 
The  exact  rule  of  skill  and  diligence,  which  the  law  imposes 
on  the  carrier  to  the  end  that  his  means  of  transportation 
shall  be  safe,  would  be  substantially  frittered  away  if  the 
courts  were  to  hold  that  when  those  means  of  transporta- 
tion fail,  to  the  injury  of  his  passengers,  the  carrier  can 
shelter  himself  behind  the  negligence  of  the  manufacturer 
or  contractor  by  whom  they  were  originally  made.  The 
rule  which  exonerates  a  proprietor  from  the  payment  of 
damages,  happening  through  the  negligence  of  an  indepen- 
dent contractor  doing  work  on  his  premises,  has  no  appli- 
cation to  the  case  where  the  contractor  is  constructinsr  or 
repairing  the  roadway  or  the  vehicles  of  transportation  of 
a  carrier  of  passengers.^" 


"  Philadelphia,  etc.,  R.  v. 
Anderson  (1880),  94  Penn.  St. 
351;  39  Amer.  Rep.  787.  See 
Sec.  134,  post. 

**  C.^^RIco  V.  West  Virginia, 
ETC.,  R.  Co.  (1891),  35  W.  Va. 
389;  14  S.  E.  12;  (1894),  39  W. 
Va.  86;  19  S.  E.  571;  24  L.  R. 
A.  50.  See  Sec.  133.  "It  is  well 
settled  that  a  railway  company 
cannot,    by    any    form    of    agree- 


ment, whether  it  be  made  with 
another  company  or  with  an  in- 
dividual, relieve  itself  from  re- 
sponsibilit}'  for  the  non-perform- 
ance of  the  duties  which  are 
incident  to  the  discharge  of  its 
functions  as  a  common  carrier." 
Note  to  Anderson  v.  Fleming 
(1903,  Ind.),  66  L.  R.  A.  140, 
citing  cases,  q.  v.  Where,  under 
state  regulation,  a  railroad  is  re- 


236       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  132.     Same,  Safe  Premises. 

The  duty  of  a  common  carrier  to  provide  safe  stations, 
waiting  rooms,  platforms,  approaches,  passage-ways,  etc., 
for  the  use  and  convenience  of  its  passengers,  as  well  as 
a  safe  roadway  and  safe  vehicles,  is  so  absolute  in  its  na- 
ture that  the  carrier  can  not  shift  the  responsibility  for 
failing  to  perform  it  upon  the  shoulders  of  an  independent 
contractor."'^"  In  other  words  the  duty  of  the  carrier  to- 
wards a  passenger  to  supply  safe  and  convenient  stations 
and  approches,  is  a  primary  duty  and  it  cannot  be  trans- 
ferred to  an  independent  contractor  employed  to  construct 
or  repair  the  premises  of  the  carrier,  so  as  to  exonerate 
the  latter  from  responsibility  for  the  condition  of  his 
premises.^^ 


quired  to  issue  a  bill  of  lading  for 
cotton  in  exchange  for  compress 
company  receipts,  such  bill  of  lad- 
ing providing  that  each  carrier  car- 
rying the  cotton  shall  be  entitled, 
at  its  own  cost,  to  compress  it 
for  greater  convenience  in  hand- 
ling and  forwarding,  the  com- 
press company  which  provides  its 
own  platform,  machinery  and  em- 
ployees, and  determines  for  itself 
the  manner  and  time  for  prepar- 
ing the  cotton  for  shipment,  is 
an  independent  contractor  for 
whose  negligence  the  railroad 
company  is  not  liable.  Arthur 
V.  Texas,  etc.,  R.  (1905),  139 
Fed.  127,  reversed  on  other 
grounds  (1907).  204  U.  S.  505; 
40  Am.  &  Eng.  R.  Cas.  (N.  S.),  17. 

"  Barrows,  etc.,  Co.  v.  Kane 
(1898),  88  Fed.  197;  59  U.  S. 
App.  574;  Thomps.  Neg.,  Sees. 
669,  2804,  3391. 

"  Gilmore   v.    Philadelphia,   etc., 


R.  (1893),  154  Penn.  St.  375;  25 
Atl.  774;  Delaware,  etc.,  R.  v. 
Trautwein  (1890),  52  N.  J.  L. 
169;  7  L.  R.  A.  435;  7  Rail.  & 
Corp.  Law  J.  316;  41  Atl.  178; 
19  Amer.  St.  Rep.  442;  Watson 
V.  Oxanna  Land  Co.  (189iy.  92 
Ala.  320;  8  So.  770.  A  carrier 
was  held  liable  where  a  pas- 
senger was  injured  by  falling 
through  an  opening  at  the  head 
of  a  flight  of  stairs  used  as  a 
means  of  access  to  the  station, 
although  the  opening  had  been 
left  by  an  independent  contractor 
in  repairing  the  stairway.  Gil- 
more  V.  Philadelphia,  etc.,  R., 
supra.  Where  a  passenger  was 
injured  in  consequence  of  the 
defective  condition  of  a  bridge 
on  the  grounds  of  the  railroad 
company,  forming  part  of  its 
recognized  way  to  and  from  its 
trains,  the  company  was  held  li- 
able,   notwithstanding    it    had    an 


employer's  exceptional  liability. 


237 


Sec,  133.     Same,  Safe  Vehicles,  etc. 

The  carrier's  obligation  to  transport  the  passengers 
safely  cannot  be  shifted  from  himself  by  delegation  to  an 
independent  contractor ;  and  it  extends  to  all  agencies  em- 
ployed, and  includes  the  duty  of  protecting  the  passengers 
from  any  injury  caused  by  the  act  of  any  subordinate  or 
third  person,  engaged  in  any  part  of  the  service  required 
by  the  contract  of  transportation.  The  case  cited  below  °* 
was  quite  analogous  to  those  in  which  it  has  been  held  that 
a  railroad  company  is  responsible  for  the  neglect  or  mis- 
conduct of  the  servants  of  a  sleeping  car  company  whereby 
a  passenger  sustains  loss  or  injury  while  being  transported 
under  a  contract  with  the  railroad  company.  By  the  weight 
of  authority  the  negligence  of  the  manufacturer  of  the 
vehicles  used  by  a  common  carrier  is  in  theory  of  law,  the 
negligence  of  the  carrier  himself,  and  it  is  not  sufficient 
that  the  carrier  assures  himself  that  the  manufacturer  is 
of  good  repute  in  his  business.^"     A  coach  proprietor  is 


agreement  with  a  third  person 
whereby  the  latter  was  bound  to 
keep  the  bridge  in  repair.  Wat- 
son V.  Oxanna,  etc.,  Co.,  supra. 
But  it  has  been  said  that  the 
lessee  of  a  dock  is  not  liable  for 
injuries  caused  by  the  fall  of  a 
chute  which  had  been  negligently 
set  up  by  a  stevedore's  subcon- 
tractor. Woodward  v.  P  e  t  o 
(1852),  3  Post.  &  F.  389. 

^  Barrow  Steamship  Co.  v. 
Kane  (1898),  88  Fed.  197;  59  U. 
S.  App.  574,  citing  Pennsylvania 
Co.  V.  Roy  (1880),  102  U.  S.  451; 

DWINNELLE    V.     NeW     YoRK,     ETC., 

R.  (1890),  120  N.  Y.  117;  24  N. 
E.  319;  8  L.  R.  A.  224;  17  Amer. 
St.  Rep.  611;  Kinsley  v.  L.\ke 
Shore,  etc.,  R.  (1874),  125  Mass. 


54;  28  Amer.  Rep.  200;  Railro.^d 
Co.  V.  Walr.xth  (1882),  38  Ohio 
St.  461;  43  Amer.  Rep.  433. 

*  Hegeman  v.  Western  Rail- 
road (1853),  16  Barb.  (N.  Y.), 
353;  (1855).  13  N.  Y.  9;  64  Am. 
Dec.  517;  Caldwell  v.  New  Jer- 
sey, etc.  (1872),  47  N.  Y.  282; 
Carroll  v.  Staten  Island  R.  R. 
(1874),  58  N.  Y.  126;  17  Amer. 
Rep.  221 ;  Burns  v.  Cork,  etc.,  R. 
(1863),  Irish  R..  13  C.  L.  (N. 
S.),  543.  Contra  and  unsound, 
Grand  Rapids,  etc.,  R.  v.  Hunt- 
lev  (1878),  38  Mich.  537;  31 
Amer.  St.  Rep.  321.  The  same 
rule  applies  as  to  competent  en- 
gineers. Grote  v.  Chester,  etc., 
R.  (1848),  2  Exch.  251;  5  Fng. 
R.  &  C.  Cas.  649;  Brehm  v.  Great 


238       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


answerable  for  an  accident  due  to  an  imperfection  in  the 
vehicle  used,  if  discoverable  by  a  reasonable  examination, 
although  such  proprietor  employed  a  competent  coach 
maker.*^^  In  one  case  it  was  held  that  the  recovery  was 
properly  denied  where  the  carrier  showed  not  only  that  it 
purchased  the  appliances  responsible  for  the  accident  from 
a  reputable  dealer,  but  also  that  it  had  subjected  the  appli- 
ances to  a  daily  inspection  by  an  expert  employee,  and  the 
plaintiff  offered  no  rebuttal,  relying  wholly  on  the  doctrine 
of  res  ipsa  loquitur. ^^ 

Sec.  134.     Same,  Safe  Tracks,  etc. 

In  an  action  against  a  railroad  company  by  a  passenger 
for  injuries  resulting  from  an  obstruction  of  the  track  by 


Western  (1861),  34  Barb.  (N. 
Y.),  256.  There  is  authority  that 
a  carrier  is  responsible  for  de- 
fects in  its  cars  though  such 
defects  could  not  have  been  dis- 
covered after  the  cars  came  into 
its  possession  if  they  could  have 
been  discovered  by  the  exercise  of 
the  proper  care  and  skill  in  their 
construction.  Siemsen  v.  Oakland, 
etc.,  R.  (1901),  134  Cal.  494;  66 
Pac.  672. 

<«  Sharp  V.  Gray  (1833),  9 
Bing.  457;  2  Moore  &  S.  621.  To 
the  same  effect  concerning  rail- 
way engine  and  cars,  Hegeman 
V.  Western  R.  Corp.  (1853),  16 
Barb.  (N.  Y.),  353;  (1855)  13 
N.  Y.  9;  64  Amer.  Dec.  517; 
McPadden  V.  New  York,  etc.,  R. 
(1871),  44  N.  Y.  478;  4  Amcr. 
Rep.  '705  ;  Meier  v.  Pennsylvania 
R.  Co.  (1870),  64  Penn.  228;  3 
Amer.  Rep.  581 ;  Toledo,  etc.,  R. 
V.  Beggs  (1877),  85  Ills.  80;  28 
Amer.  Rep.  613.  Also  as  to 
bridges:   Grote  v.   Chester,   etc., 


R.,  supra.  And  to  defects  in 
tracks  due  to  negligence  of  one 
contracting  to  construct  or  main- 
tain same :  Virginia,  etc.,  R.  v. 
Sanger  (1859),  15  Gratt.  230;  10 
Am.  Neg.  Cas.  365;  Carrico  v. 
West  Virginia,  etc.,  R.  (1891), 
35  W.  Va.  389;  14  S.  E.  12; 
(1894),  39  W.  Va.  86;  19  S.  E. 
571;  24  L.  R.  A.  50.  A  stage 
company  was  held  liable  for  the 
death  of  a  passenger  caused  by 
an  accident  to  its  stage  while  on 
a  ferry  boat  owned  by  another, 
but  constituting  a  part  of  its 
route,  for  which  ferriage  was  paid 
by  it,  the  accident  occurring  by 
the  negligence  of  the  ferryman 
without  defendant's  participation, 
the  court  considering  that,  as  to 
passengers,  the  ferry  company 
was.  in  law,  the  employee  and 
servant  of  defendant.  McLean  v. 
Burbank    (1866),   11   Minn.  277. 

*'  Murray  v.  Pawtucket,  etc., 
R.  (1903),  25  R.  I.  209;  55  Atl. 
491. 


employer's  exceptional  liability. 


239 


work  being  done  thereon,  it  is  no  defense  that  the  defendant 
had  placed  the  work  in  the  hands  of  an  independent  contractor 
and  that  the  latter's  neghgence  had  caused  the  obstruction."^ 
If  a  railway  company  while  using  its  tracks  for  the  carriage 
of  passengers  engages  in  a  work  to  be  done  in  immediate 
proximity  to  the  track,  negligence  in  the  performance  of 
which  would,  in  the  opinion  of  cautious  persons,  endanger 
the  passage  of  its  cars,  and  an  accident  to  a  passenger  is 
caused  by  an  obstruction  arising  from  negligence  in  the 
performance  of  such  work,  the  company  must  pay  damages ; 
it  will  be  no  defense  that  the  work  was  placed  in  the  hands 
of  a  contractor  and  that  the  negligence  which  caused  the 
injury  was  that  of  one  of  his  employees,  as  where,  through 
the  negligence  of  the  servants  of  a  contractor  for  the  doing 
of  certain  stonework  for  a  railway  company,  a  stone  was 
rolled  or  shaken  from  an  embankment  and  rolled  under  the 
wheels  of  a  passenger  train  throwing  a  car  from  the  track 
and  injuring  a  passenger.''^  A  railway  company  is  required 
to  answer  for  tortious  acts  committed  by  the  servants  of 
another  railway  company  on  whose  tracks  it  has  been 
licensed  to  operate  trains;  thus,  a  company  is  liable  for 
the  negligent  management  of  a  switch  wdiereby  a  passenger 
receives  injury,  although  it  is  provided  and  attended  to  by 
a  servant  of  the  company  owning  the  track. '^'^ 


"^Carrico  v.  Railroad  Co. 
(1891).  35  W.  Va.  389;  14  S.  E. 
12;  (1894),  39  W.  Va.  86;  19  S.  E. 
571;  24  L.  R.  A.  50.  See,  also, 
Donoyan  v.  Transit  Co.  (1894), 
102  Cal.  245;  36  Pac.  515;  Lancas- 
ter Avenue  Imp.  Co.  v.  Rhoads 
(1887),  116  Penn.  St.  377;  9  Atl. 
852;  2  Amer.  St.  Rep.  608. 

*"  Virginia,  etc.,  R.  v.  Sanger 
(1859),  15  Gratt.  (Va.),  230;  10 
Am.     Neg.     Cas.    366;     Burns    v. 


Cork,    etc.,    R.     (1853),    13    Irish 
C.  L.   (N.  S.),  543. 

"  McElroy  v.  Nashua,  etc.,  R. 
(1849),  4  Cush.  400;  50  Amer. 
Dec.  794.  Cf.,  Murray  v.  Lehigh, 
ETC.,  R.  (1895).  66  Conn.  512;  34 
Atl.  506;  32  L.  R.  A.  539.  And 
the  converse  of  this  is  true,  and  a 
licensee  company  which  operates 
its  trains  over  another's  road  is 
li.ible  for  injuries  caused  to  a 
passenger    by    a    defective    track. 


240       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


Sec.  135.     Same,  Sleepers,  etc. 

In  the  earliest  case  on  this  subject,  it  was  declared  that 
if  one  "who  has  made  a  contract  with  a  railroad  company 
for  his  personal  transportation  from  one  place  to  another, 
takes  a  seat  in  a  sleeping  car  and  there  loses  an  article  of 
personal  baggage  through  the  negligence  of  a  person  in 
charge  of  the  car  and  without  fault  on  his  own  part,  it  is 
no  defense  to  an  action  against  the  corporation  that  the  car 
was  not  owned  by  the  defendant,  but  by  a  third  person, 
who  by  a  contract  with  the  defendant,  provided  conductors 
and  servants,  in  the  absence  of  the  evidence  that  the  plain- 
tiff had  knowledge  of  these  facts."  ^^  In  a  New  York  case, 
the  court  held,  in  effect,  that  those  in  charge  of  drawing- 
room  and  sleeping  cars  owned  by  parties  other  than  the 
railway  company  operating  the  rest  of  the  train  are  to  be 
regarded  and  treated,  in  respect  to  any  matter  involving  the 
safety  and  security  of  the  passengers,  as  the  servants  of 
the  railroad  company  and  for  their  acts  it  is  responsible  to 
the  same  extent  as  if  they  were  directly  employed  by  it.^*' 


Wabash,  etc..  R.  v.  Peyton 
(1883).  106  Ills.  534;  46  Amer. 
Rep.  705.  A  mvmicipality  was 
not  liable,  in  Scotland,  where  the 
lessee  of  its  ferry  neglected  to 
see  to  it  that  the  wire  rope  by 
which  the  ferry  was  operated  was 
kept  in  a  safe  condition.  Duncan 
V.  Magistrates,  etc.  (1877,  Ct.  of 
Sess.),   14  Scot.   L.  R.  603. 

'*  Kinsley  v.  Lake  Shore,  etc., 
R.  (1878),  125  Mass.  54;  28 
Amer.'  Rep.  200;  Louisville,  etc., 
R.  V.  Katzenberger  (1886),  16 
Lea  (Tenn.),  380;  57  Amer.  Rep. 
232. 

**  Thorpe  v.  New  York,  etc., 
R.  (1879),  76  N.  Y.  406;  32 
Amer.    Rep.    325.      To    the    same 


effect :  Pennsylvania  Co.  v.  Roy 
(1880),  102  U.  S.  451;  26  Law 
Ed.  141 ;  Jones  v.  St.  Louis, 
etc.,  R.  (1894),  125  Mo.  675;  28 
S.  W.  883;  26  L.  R.  A.  718;  46 
Amer.  St.  Rep.  514;  Cleveland, 
etc.,  R.  v.  Walr.\th  (1832),  38 
Ohio  St.  461;  43  Amer.  Rep. 
433;  Williams  v.  Pullman,  etc., 
Co.  (1888),  40  La.  Ann.  417;  4 
So.  85;  8  Amer.  St.  Rep.  538; 
Dwinnellee  v.  New  York,  etc., 
R.  (1890),  120  N.  Y.  117;  24  N. 
E.  319;  8  L.  R.  A.  224;  17  Amer. 
St.  Rep.  611;  Ulrich  v.  New 
York,  etc.,  R.  (1888),  108  N.  Y. 
80;  15  N.  E.  60;  2  Amer.  St. 
Rep.  369. 


employer's  exceptional  liability.  241 

Sec.  136.     Same,  Special  Contract  as  to  Freight. 

A  railway  company  for  extra  compensation  agreed  to 
keep  a  certain  car  in  which  plaintiff's  perishable  goods  were 
loaded,  at  a  certain  temperature  sufficiently  cold  to  preserve 
the  goods  to  their  destination.  The  company  failed  to  do 
this  and  the  goods  were  lost.  "It  is  the  contention  of  the 
appellant  company  that  it  discharged  its  duty  to  appellees 
when  it  furnished  a  refrigerator  car,  and  that  the  duty  of 
icine  the  car,  under  the  evidence,  devolved  on  the  X.  com- 
pany,  the  owner  of  the  car.  The  contention  is  unsound. 
It  matters  not  .  .  .  that  the  refrigerator 
car  belonged  to  the  X.  company,  an  independent  contractor. 
Appellees  had  no  contract  with  it  to  furnish  cars,  or  to  use 
them  when  furnished."  The  railway  company  was  held 
liable  for  the  negligence  of  the  X.  company.^'^ 

Sec.  137.     Same,  As  to  running  Trains. 

If  the  carrier  commits  a  locomotive  and  train  of  cars  to 
a  contractor  to  be  used  by  the  latter  in  executing  his  con- 
tract, then  for  an  injury  which  may  happen  to  any  one 
through  the  negligent  management  of  such  train  by  the 
contractor  or  his  servants,  the  contractor  and  not  the  carrier 
will  be  answerable.  To  this  statement  an  exception  may 
exist  where,  by  a  custom  or  otherwise,  the  carrier  permits 

"  St.    Louis,    etc.,    R.    Co.    v.  neglect  or   default   of   such   com- 

Renfroe     (1907),    82    Ark.     143;  pany    or    its    "servants"    notwith- 

100  S.  W.  889;   10  L.  R.  A.    (N.  standing  any  contrary  notice,  etc., 

S.),   317.     Citing   and   relying  on  given    by    the    company.      Under 

New  York,  etc.,  R.  v.  Cromwell  this  act,  a  railway  company   was 

(1900).    98    Va.    227;    35    S.    E.  held    answerable    for    the    negli- 

444:   49  L.  R.   .\.  462;  81    Anier.  gence  of  a  master  and  crew  of  a 

St.  Rep.  722.     An  English  statute  steamer    with    whose    owners    the 

provides   that  every   carrier  com-  company   had   contracted    for   the 

pany  within   its  purview   shall  be  conveyance      of      certain      cattle, 

liable    for   the    loss   of   or    injurv  Doolaii  v.  Midland  R.    (1877),  L. 

to  any  cattle,  etc.,  caused  by  the  R.,  2  App.  C.  C.  792. 


242       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

passengers  to  take  passage  and  be  transported  on  such  a 
train,  in  which  exceptional  case  he  makes  the  independent 
contractor  his  servant  or  agent  in  respect  of  such  pas- 
senger ;  but  It  will  always  be  a  question  of  difficulty,  under 
such  circumstances,  whether  the  relation  of  carrier  and 
passenger  has  been  created.  If  the  person  being  so  trans- 
ported pays  fare  to  the  railway  company,  there  will  be  no 
difficulty  in  holding  that  the  relation  has  been  established; 
but  if,  on  the  other  hand,  he  is  permitted  to  ride  by  the 
mere  courteous  or  officious  act  of  the  independent  contrac- 
tor then  the  contrary  would  seem  to  be  the  proper 
conclusion/'*^ 


Sec.  138.     Same,  as  to  Criminal  Acts. 

Under  an  English  statute,  providing  that  a  carrier  should 
be  answerable  for  injuries  "from  the  felonious  acts  of  any 
coachman,  guard,  bookkeeper,  porter  or  other  sei-vant  in 
his  employ,"  it  was  held  that  "servant"  includes  one  who 
is  directly  or  indirectly  employed  by  the  carrier  to  do  what 
such  carrier  has  contracted  to  do.  Hence,  a  carrier  under 
such  act  is  liable  for  the  theft  of  an  article  by  a  firm's  em- 
ployee with  which  a  subcontract  had  been  made  to  deliver 
certain  goods,  including  those  stolen.*^^ 


""  Thomps.  Neg.,  Sees.  628,  3392. 
Wherever  a  statute  or  the  com- 
mon law  imposes  a  special  duty 
on  the  employer,  such  as  the  duty 
of  a  common  carrier  to  transport 
their  passengers  or  freight  safely, 
such  precautions  must  be  taken 
and  the  employer  cannot  escape 
liability  by  letting  the  work  to  a 
contractor  ever  so  skillful  or 
careful.  Burd.  Torts,  p.  144, 
citirg  and  quoting  Barrow  Steam- 
ship Co.  V.  Kane  (1898),  88  Fed. 
197;  59  U.  S.  App.  574. 


^  Machu  V.  London,  etc.,  R. 
(1848),  2  Exch.  415;  5  Eng.  Ry. 
Cas.  302.  A  railroad  company 
was  held  liable  for  goods  obtained 
through  a  forged  order  while 
lying  in  defendant's  station,  and 
misappropriated  by  an  employee 
of  the  proprietor  of  the  receiving 
office  at  which  plaintifif  had 
earlier  delivered  them  for  trans- 
mission to  the  station.  Stephens 
V.  London,  etc.,  R.  (1886),  L.  R., 
18  Q.  B.  Div.  121. 


employer's  exceptional  liability. 


243 


Sec.  139.     Cities  and  Towns,  Generally, 

"It  is  not  easy  to  determine  when  a  municipality  is  liable 
for  the  nej^ligence  of  a  contractor.  It  certainly  can  not  re- 
lieve itself  from  the  duty  which  rests  upon  it  by  transferring 
that  duty  to  a  contractor.  The  corporation  must  see  that 
the  pubhc  is  properly  protected,  and  if  the  contractor  fails 
to  perform  that  duty  the  city  is  responsible  for  the  resulting 
damages."  ''^  The  city  will  be  responsible  for  the  acts  of 
an  independent  contractor  if  the  matter  involved  in  his 
contract  is  one  of  absolute  duty  owed  by  the  city  to  an 
individual  or  the  work  is  intrinsically  dangerous,  or  when 
properly  done  creates  a  nuisance.'^     It  is  the  general  rule 


'"Elliott  Munic.  Corps.,  p.  270, 
citing  Turner  v.  N  e  \v  b  u  r  g  h 
(1888),  109  N.  Y.  301;  16  N.  E. 
344;  4  Amer.  St.  Rep.  453;  Jef- 
ferson V.  CHAPM.A.N  (1889),  127 
Ills.  438;  20  N.  E.  33;  11  Amer. 
St.  Rep.  139;  Circleville  v.  Neud- 
ing  (1885),  41  Ohio  St.  465; 
HiNCK  V.  Milwaukee  (1879),  46 
Wise.  565;  32  Amer.  Rep.  735; 
Grant  v.  Stillwater  (1886),  35 
Minn.  242;  28  N.  W.  660. 

"  Bennett  v.  Mount  Vernon 
(1904),  124  Iowa,  537;  100  N. 
W.  349;  16  Am.  Neg.  R.  612,  n. ; 
Chicago  v.  Murdock  (1904),  212 
Ills.  9;  72  N.  E.  46;  103  Amer. 
St.  Rep.  221,  blasting  for  tunnel. 
"The  accepted  doctrine  in  the 
United  States  is  that  a  munici- 
pality which  is  charged  with  the 
duty  of  keeping  certain  highways 
in  safe  condition  for  public  travel, 
and  which  has  either  authorized, 
or  has  been  constrained  by  the 
operation  of  statute  to  permit, 
the  performance  of  work  which, 
in  the  absence  of  certain  precau- 
tions, will  necessarily  render  one 


of  these  highways  abnormally 
dangerous  for  the  time  being,  is 
liable  for  injuries  caused  by  the 
absence  of  these  precautions  what- 
ever may  be  its  relation  to  the 
party  who  is  actually  engaged  in 
doing  the  work.  The  municipal- 
ity lies  in  this  regard  under  a 
primary,  absolute,  or  non-dele- 
gabie  duty,  in  the  performance  of 
which  it  is  bound  to  use  reason- 
able care  and  diligence."  ["See, 
generally.  Turner  v.  Newburgh, 
supra;  Brusso  v.  Buffalo  (1882), 
90  N.  Y.  679;  and  the  cases  cited 
in  the  following  notes."]  Note 
to  Anderson  v.  Fleming  (1903, 
Ind.),  66  L.  R.  A.  126.  "As  the 
city  is  the  principal  in  the  duty 
imposed,  it  must  occupy  the  same 
position  when  damages  are  claim  d 
for  a  neglect  of  tliat  duty.  .  .  . 
A  corporation,  like  individuals,  is 
required  to  exercise  its  rights  and 
powers  and  with  such  precautions 
as  shall  not  subject  others  to  in- 
jury." Springfield  v.  LeClaire 
(1869),  49  Ills.  476. 


244       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

that  a  city  will  be  liable  for  the  negligence  of  a  contractor 
in  its  employ  where  the  work  is  performed  under  the  direct 
control  of  the  city's  own  officers/^  If  otherwise  liable, 
a  city  will  continue  liable  although  it  has  no  control  over 
the  workmen  of  a  contractor  and  although  it  has,  in  its 
agreement  with  the  contractor,  stipulated  that  he  shall  be 
liable  for  accidents  occasioned  by  his  neglect.'^^  If  the  work 
be  done  by  an  independent  contractor,  the  city  will  not  be 
answerable  where  the  injury  is  through  some  negligence  of 
the  contractor  or  his  servant,  not  amounting  to  a  failure 
of  a  duty  which  the  city  itself  owes  to  the  person  injured; 
otherwise  it  would  be  liable  for  his  neglects  in  like  manner 
as  where  the  work  is  executed  by  its  own  officers.'^'^  In 
England  the  liability  of  a  municipality,  or  other  public  body 
having  charge  of  highways,  for  injuries  due  to  unsafe 
conditions  caused  by  the  negligence  of  an  independent  con- 


"  Smith  V.  Seattle  (1899),  20 
Wash.  613;  58  Pac.  389;  Penny 
V.  Wimbledon,  etc.,  Council 
(1898),  2  Q.  B.  Div.  212;  7  Am. 
Neg.  R.  158,  n.  That  the  contract 
between  the  city  and  the  con- 
tractor in  a  given  case  was  not 
executed  in  due  form  will  not  re- 
lieve the  city  from  liability. 
Hepburn  v.  Philadelphia  (1892), 
149  Penn.  St.  335;  24  Atl.  279; 
33  Amer.  St.  482;  15  L.  R.  A. 
821. 

"Wilson  v.  Wheeling  (1882), 
19  W.  Va.  323;  42  Amer.  Rep. 
780.  From  the  responsibility  to 
which  a  municipality  is  ordinarily 
subjected  it  cannot  relieve  itself 
by  inserting  in  the  contract  a  pro- 
vision requiring  the  contractor  to 
see  that  third  persons  are  ade- 
quately protected  while  the  work 
is  in  progress.     Brooks  v.  Somer- 


ville  (1871),  106  Mass.  271; 
Russell  v.  Columbia  (1881),  74 
Mo.  480;  41  Amer.  Rep.  325; 
Pettengill  v.  Yonkers  (1889), 
116  N.  Y.  558;  22  N.  E.  1095;.  15 
Amer.  St.  Rep.  442. 

"  Fink  v.  St.  Louis,  etc.,  R. 
(1872),  71  Mo.  52;  Barry  v.  St. 
Louis  (1852),  17  Mo.  121,  fol- 
lowed in  Schweickardt  v.  St. 
Louis  (1876),  2  Mo.  App.  571; 
disapproved  in  Welch  v.  St. 
Louis  (1880),  11  Mo.  71;  Hani- 
ford  V.  Kansas  City  (1890),  103 
Mo.  172;  15  S.  W.  753;  Balti- 
more V.  O'Donnell  (1879),  53 
Md.  110;  36  Amer.  Rep.  395.  For 
city's  liability  under  statute,  see 
Seattle  v.  Buzby  (1880),  2  Wash. 
Terr.  25 ;  3  Pac.  180 ;  St.  Paul  v. 
Seitz  (1859),  3  Minn.  297;  74 
Amer.  Dec.  753. 


EMPLOYER'S  EXCEPTIONAL   LLVBILITY. 


245 


tractor,  has  never,  it  seems,  been  discussed  with  specific 
reference  to  the  conception  of  an  absolute  duty  or  obliga- 
tion ;  and  the  cases,  as  they  stand,  appear  to  be  rather  un- 
favorable to  the  inference  that  an  action  is  maintainable 
on  this  basis.'^^ 

Sec.  140.     Same,  Jointly  with  Contractor. 

Whether  the  city  will  be  jointly  liable  with  a  contractor 
must  depend  on  the  circumstances  of  the  case;  if,  for  ex- 
ample, an  excavation  is  left  unguarded  or  unlighted  by  the 
contractor  during  the  progress  of  the  work,  and  the  city 
has  notice  of  its  dangerous  condition,  express  or  implied, 
then  the  city  will  be  liable  to  a  traveler  who,  without  fault 
on  his  part,  is  injured  by  driving  or  falling  into  it,  because 
it  would  be  liable  if  the  excavation  were  made  by  a 
stranger.'''  It  may  be  said  generally  that  it  is  as  much  the 
duty  of  a  municipality  to  remove  or  guard  against  an  ob- 
struction to  a  public  highway  placed  there  by  a  third  person, 
as  if  it  was  so  placed  by  the  city  itself;  provided  the  city 


"Taylor  v.  Greenhalgh  (1876). 
24  Week.  Rep.  311,  reversing  L. 
R.,  9  Q.  B.  487. 

"McAllister  v.  Albany  (1890), 
18  Ore.  426;  23  Pac.  845;  Scan- 
Ian  V.  Watertown  (1897),  14 
App.  Div.  (N.  Y.),  1;  43  N.  Y. 
Supp.  618;  1  Am.  Neg.  R.  487; 
Beattie  v.  Detroit  (1901),  129 
Mich.  20;  88  N.  W.  71;  Burger 
V.  Philadelphia  (1900).  196  Penn. 
St.  41;  46  Atl.  262.  "The  dis- 
tinction seems  to  be  that  if  the 
work  which  the  contractor  en- 
gages to  do  is  in  itself  unlawful, 
or  so  inherently  dangerous  as  to 
constitute   a   public   nuisance   and 


to  be  for  that  reason  unlawful, 
then  both  the  city  and  the  con- 
tractor are  liable  as  joint  tort 
feasors,  just  as  a  master  and  his 
servant  may  be  liable  for  a  tres- 
pass or  other  positive  wrong 
ordered  by  the  master  and  done 
by  the  servant  to  the  injury  of  a 
third  person ;  whereas,  if  the 
work  itself  is  not  unlawful  or  in- 
herently dangerous,  but  if  the 
danger  to  the  public  springs  from 
the  unlawful  or  negligent  manner 
in  which  tlie  contractor  executes 
the  work,  he  and  not  the  city  will 
be  liable  therefor."  5  Thomps. 
Neg.,  289. 


246       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABIIJTY, 


has  actual  or  implied  notice."  The  duty  of  the  city  to 
erect  barriers  and  to  establish  signals  in  case  of  dangerous 
defects,  etc.,  in  the  highway  is  not  discharged  by  engaging 
a  contractor  to  perform  it.  A  city  is  liable  for  negligent 
injuries  to  a  person  traveling  over  a  sidewalk  in  the  course 
of  construction,  where  the  permit  for  the  work  stated  that 
it  should  be  done  "under  the  superintendence  of  the  city  en- 
o-ineer."  "^  But  where  the  negligence  relates  to  a  matter 
with  reference  to  which  the  corporation  is  under  no  special 
obligation,  the  liability  rests  on  the  contractor  alone.'^'^ 


"Vincennes  v.  Specs  (1905),  35 
Ind.  App.  389;  74  N.  E.  277,  re- 
versing 72  N.  E.  531.  Ci., 
McEvoy  V.  Sault  Ste.  Marie 
(1904),  136  Mich.  172;  98  N.  W. 
1006. 

"McClammy  V.  Spokane  (1904), 
36  Wash.  339;  78  Pac  912.  An 
Ontario  statute  authorized  a  city 
to  enter  into  an  agreement  for 
the  construction  of  a  street  rail- 
way, and  to  pass  by-laws  for  the 
purpose  of  carrying  any  such 
agreement  into  effect;  under  it,  a 
city  courxil  passed  a  by-law  pro- 
viding that  the  strip  between  the 
rails  and  adjacent  thereto  should 
be  kept  in  repair  by  the  company 
constructing  the  railway,  that  the 
company  should  remove  all  ice 
and  snow  from  the  tracks  under 
the  direction  of  the  city  commis- 
sioner, that  the  company  should 
be  liable  for  all  damages  occa- 
sioned to  any  person  by  reason 
of  the  construction,  repair  or 
operation  of  the  railway  or  by 
reason  of  any  default  in  repair- 
ing those  parts  of  the  streets 
which  the  company  was  required 
to   keep   in    repair;    and   that   the 


city  should  be  indemnified  by  the 
company  from  all  liability  in  re- 
spect to  such  damages.  During 
one  winter  the  company  had  re- 
moved the  ice  and  snow  from  its 
tracks  and  laid  these  in  the  cen- 
ter of  the  street,  resulting  in 
forming  a  deep  depression  at  the 
tracks.  Phintiflf's  sleigh  was 
thereby  overturned  and  he  was 
injured.  The  court  held  that  not- 
withstanding the  legislation,  agree- 
ment and  by-law  above  referred 
to,  the  defendant  city  was  liable 
to  the  plaintiff.  Carty  v.  London 
(1889),  18  Ont.  R.  122.  In  a 
dictum,  probably  correct,  the  court 
said  the  defendant  had  a  right  of 
reimbursement  against  the  rail- 
way company. 

'*>  Elliott  Pub.  Corps.,  p.  270, 
citing  Harvey  v.  Hillsdale  (1891), 
86  Mich.  330;  49  N.  W.  141; 
Van  Winter  v.  Henry  Co.  (1883), 
61  Iowa,  684;  17  N.  W.  94.  See, 
also,  Harrington  v.  Lansing- 
burgh  (1888),  110  N.  Y.  145;  17 
N.  E.  728;  6  Amer.  St.  Rep.  348; 
Depot  v.  Simmons  (1886),  112 
Penn.  St.  384;  5  Atl.  434;  56 
Amer.  Rep.  317. 


employer's  exceptional  llvbility.  247 

"The  judgment  on  its  merits  in  the  contractor's  favor  in 
appellee's  action  against  him  conclusively  adjudged  that  he 
was  not  liable  to  appellee,  or  any  person  claiming  under 
her,  for  the  same  cause  of  action.     If  appellee  was  not  en- 
titled to  recover  for  said  injury  against  the  contractor,  she 
is  not  entitled  to  recover  therefor  against  appellant  (city). 
The  contractor  had  the  right,  if  duly  notified  by  appellant, 
to  appear  and  set  up  said  former  judgment  in  his   favor 
against  appellee,  and  appellant  has  the  same  right;  other- 
wise the  contractor  would  have  to  defend  the  same  cause 
twice  on  its  merits."  *"     One  L.  was  injured  by  falling  over 
a  plank  negligently  placed  over  a  sidewalk  by  laborers  build- 
ing houses  for  one  S.    He  sued  the  city  and  later  by  amend- 
ment S.  was  made  a  defendant.     Judgment  was  rendered 
in  favor  of  S.  under  plea  of  limitations  and  against  the  city 
for  $1,000,  which  it  paid  and  then  sought  to  recover  from 
S.     Judgment  was  entered  for  S.     The  evidence  showed 
that  "S.,  a  general  builder  and  contractor,  was  erecting  for 
himself  four  buildings  on  a  lot  owned  by  him,      . 
and  that  he  did  all  the  carpenter  work  by  his  employees, 
that   J.    and    G.    were    general    contractors    and 
brick-layers,  and  as  such    .      .      .      did  all  the  brick-work 
on  said  houses  and  they. were  competent,      .      .      .      they 
employed  and  paid  for  all  labor  necessary  for  the  fulfill- 
ment of  their  contract,  and  exercised  entire  supervision  over 
same,  and  over  their  employees;      .      .      .      that  a  plank 
was  so  placed  by  them  or  their  employees  for  the 
use  of  their  laborers  in  carrying  brick,  etc.,  into  the  build- 
ings."    The  court  held  that  the  judgment  in  favor  of  L. 
was  not  conclusive  in  the  action  pending  while  conceding 
that  in  some  cases  a  city  may  recover  over  against  a  wrong- 
doing property  owner,  "in  such  an  action  to  recover  back 

"Anderson  v.  Fleming  (1903),      R.  A.  119;  16  Am.  Neg.  R.  606.  n.. 
160  Ind.  597;  67  N.  E.  443;  66  L.       citing  numerous   authorities. 


248       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  damages  the  city  has  been  compelled  to  pay  for  his 
assumed  neglect,  it  is  competent  for  the  defendant  to  show 
that  he  was  under  no  obligation  to  keep  the  street  in  safe 
condition  and  that  it  was  not  through  his  fault  that  the 
accident  happened."  ^^ 

Sec.  141.     Same,  Safety  of  Streets. 

If  the  act  or  omission  of  the  independent  contractor  is 
a  violation  of  some  primary  or  inalienable  duty  of  the  city, 
such  as  that  of  keeping  its  streets  in  a  reasonably  safe  con- 
dition for  public  travel,  the  city  will  be  liable  therefor.^^ 
The  duty  of  a  city  to  exercise  reasonable  care  to  the  end 
that  its  highways,  streets,  sidewalks,  etc.,  shall  be  rea- 
sonably safe  for  ordinary  travel,  is  absolute  in  the  sense 
that  it  is  primary  and  can  not  be  delegated  so  as  to  absolve 
it.^^     The  duty  rests  on  a  municipal  corporation  to  keep 


"Richmond  v.  Sitterding 
(1903),  101  Va.  354;  43  S.  E. 
562;  99  Amer.  St.  879;  65  L.  R. 
A.  445;  16  Am.  Neg.  R.  609,  n., 
citing  Boston  v.  Worthington 
(1858),  10  Gray,  496;  71  Amer. 
Dec.  678;  Catterlin  v.  Frank- 
fort (1881),  79  Ind.  547;  41 
Amer.  Rep.  627;  the  court  held 
the  brick  contractors  to  be  inde- 
pendent contractors  on  the  au- 
thority of  Emmerson  v.  Fay 
(1896),  94  Va.  60;  26  S.  E.  386. 

"'Anderson  v.  Fleming  (1903), 
160  Ind.  597 ;  67  N.  E.  443 ;  66  L. 
R.  A.  119;  16  Am.  Neg.  R.  606,  n. ; 
Glasgow  V.  Gillenwater  (1902), 
23  Ky.  Law  Rep.  2375;  67  S.  W. 
381 ;  contra  and  unsound,  Ho- 
warth  v.  McGugan  (1893),  23 
Ont.  R.  396;  47  Amer.  &  Eng. 
Corp.  Gas.  133. 

"^  Beatrice    v.    Reid    (1894),    41 


Nebr.  214;  59  N.  W.  770.  Gf., 
Turner  v.  Newburgh  (1888),  109 
N.  Y.  301 ;  16  N.  E.  344;  4  Amer. 
St.  Rep.  453;  Kirk  v.  Homer 
(1894),  77  Hun  (N.  Y.).  459;  28 
N.  Y.  Supp.  1000;  Jefferson  v. 
Ghapman  (1889),  127  Ills.  438; 
20  N.  E.  33;  11  Amer.  St.  Rep. 
139;  Sterling  v.  Schiffmacher 
(1892),  47  Ills.  App.  141;  South- 
well V.  Detroit  (1899),  74  Mich. 
438;  42  N.  W.  118;  Welsh  v.  St. 
Louis  (1880),  73  Mo.  71;  Kol- 
lock  V.  Madison  (1893),  84  Wise. 
458;  54  N.  W.  725;  Hill  v.  Tot- 
tenham (1898),  79  Law  T.  (N. 
S.),  495.  "It  is  the  duty  of  a 
municipal  corporation,  vested  by 
law  with  authority  over  the 
streets,  whilst  dangerous  works, 
such  as  sewers,  etc.,  are  being 
constructed  across  a  street,  to 
have   proper   precautionary   meas- 


employer's  exceptional  liability. 


249 


its  streets  in  a  safe  and  passable  condition  and  where  a  con- 
tractor with  the  city  failed  to  place  proper  guards  about  an 
excavation,  thereby  causing  injury  to  a  passerby,  the  city 
was  held  liable.^^     And  the  city  is  nevertheless  liable  for 


ures  taken  to  prevent  accidents  to 
passengers  during  such  construc- 
tion, whether  the  same  is  being 
done  by  the  corporation  through 
its  own  servants  or  by  contract, 
or  by  subcontractors  under  a  pri- 
mary contractor.  Such  duty,  at 
least  in  the  cases  of  independent 
contractors  or  subcontractors,  is 
not  founded  on  the  principle  of 
respondeat  superior  but  is  de- 
ducible  from  the  authority  in  the 
corporation  over  the  streets  and 
the  obligation  flowing  therefrom 
to  protect  the  public  against 
nuisances  or  dangerous  obstruc- 
tions in  the  highways  of  the  city." 
Savannah  v.  Waldncr  (1873),  49 
Ga.  316,  syllabus  by  court.  Cf., 
Nashville  v.  Brown  (1871),  9 
Heisk.  1;  24  Amer.  Rep.  289. 
Contra,  as  to  purely  private  cor- 
porations, Lanc.\ster  Avenue, 
ETC.,  Co.  V.  Rhoads  (1887),  116 
Penn.  St.  377;  9  Atl.  852;  2 
Amer.  St.  608.  An  attempt  by 
legislative  charter  to  exempt  Mil- 
waukee from  liability  for  work 
done  in  streets  by  contract  with 
its  public  board,  was  held  invalid 
as  against  a  general  rule  of  law 
applicable  to  all  other  cities,  in 
HiNCK  v.  Milwaukee  (1879).  46 
Wise.  559;  1  N.  W.  230;  32  Amer. 
Rep.  735.  The  employer  is  bound 
to  see  that  the  precautions  are 
taken,  in  every  case  where  the 
law,   whether   statute  or   common 


law,  imposes  a  special  duty  on  the 
employer,  such  as  the  duty  of 
municipal  corporations  to  keep 
their  streets  in  a  reasonably  safe 
condition  for  those  entitled  to  use 
them,  and  it  cannot  escape  liabil- 
ity simply  by  letting  the  work  to 
a  careful  or  skillful  contractor. 
Burd.  Torts,  p.  143,  citing  Mayor, 
etc.,  V.  McCary  (1887),  84  Ala. 
^469;  4  So.  630;  Wiggin  v.  St, 
Louis  (1896),  135  Mo.  558;  2,7 
S.  W.  528;  Omaha  v.  Jensen 
(1892),  35  Nebr.  68;  Z7  Amer. 
St.  Rep.  432. 

®*  Storks  v.  City  of  Utica 
(1858),  17  N.  Y.  104;  72  Amer. 
Dec.  437;  City  of  Ironton  v. 
Kelley  (1882),  38  Ohio  St.  50; 
Wilson  v.  City  of  Troy  (1892), 
60  Hun  (N.  Y.),  183;  14  N.  Y. 
Supp.  721;  135  N.  Y.  96;  32  N. 
E.  44;  31  Amer.  St.  Rep.  17;  18 
L.  R.  A.  449;  City  of  Sterling  v. 
Schififmacher  (1892),  47  Ills.  App. 
141 ;  City  of  Beatrice  v.  Reid 
(1894),  41  Nebr.  214;  59  N.  W. 
770;  Kollock  v.  City  of  Madison 
(1893),  84  Wise.  458;  54  N.  W. 
725;  Hepburn  v.  City  of  Phila- 
delphia (1892).  149  Penn.  St. 
335;  24  Atl.  279;  Ray  v.  City  of 
Poplar  Bluff  (1897),  70  Mo.  App. 
252.  The  duty  of  a  munic'pal 
corporation  to  keep  its  streets 
safe  is  of  such  an  absolute  nature 
that  the  city  cannot  exonerate 
itself  by  showing  that  it  had  con- 


250       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


the  unsafe  condition  of  its  streets  even  where  it  exercises  no 
control  over  the  contractor  in  respect  of  the  manner  of 
doing  the  work  except  to  see  that  it  is  done  according  to 
certain  specifications.^^  It  is  on  sound  principle  that  a  city 
is  responsible  for  injuries  proceeding  from  dangerous  and 
unguarded  excavations  left  in  its  highways  by  an  indepen- 
dent contractor  and  the  very  fact  of  the  contract  charges 
the  city  with  notice  that  the  street  is  being  dug  up  and  puts 
it  on  inquiry  as  to  whether  any  excavation  made  by  the  con- 
tractor   is    properly   guarded    and    lighted.^*''      Nor   can    a 


tracted  with  a  contractor  to  take, 
in  excavating  a  certain  public 
park,  the  precautions  the  want  of 
which  caused  the  injury.  Storks 
V.  Utica,  supra;  Baltimore  v. 
O'DONNELL  (1879),  53  Md.  110; 
36  Amer.  Rep.  395,  in  which  a 
hack  driver  sustained  an  injury 
by  coming  in  contact  with  a  rope 
stretched  across  the  street  by  the 
superintendent  of  a  contractor  of 
street  repairs,  acting  on  his  own 
responsibility,  to  guard  an  ex- 
cavation, of  which  rope  such 
driver  had  no  warning,  it  being 
night,  and  the  lamp  which  had 
been  suspended  to  it  having  been 
broken  and  extinguished  by  boys. 
Groves  v.  Rochester  (1886),  39 
Hun  (N.  Y.).  5.  The  city's  pri- 
mary duty  regarding  the  safe  con- 
dition of  its  streets  for  travel 
cannot  be  delegated  to  an  inde- 
pendent contractor.  Patterson  v. 
Austin  (1895).  15  Tex.  Civ.  App. 
201;  29  S.  W.  1139. 

*»  Circleville  v.  Neuding  (1885), 
41  Ohio  St.  465,  horse  falling  into 
cistern  which  the  city's  contractor 
was  digging  in  one  of  its  streets, 
by  reason  of  the  lack  of  sufficient 


guards  around  the  cistern.  Nor 
does  the  rule  of  exemption  apply 
where  a  public  duty  is  imposed 
by  law  upon  an  officer  or  public 
body,  and  the  officer  or  body 
charged  with  the  duty  commits  its 
performance  to  another ;  for  in- 
stance, a  municipal  corporation 
charged  by  statute  with  the  duty 
to  keep  the  streets  in  repair  can 
not  escape  liability  for  the  negli- 
gent performance  of  this  duty  on 
the  ground  that  the  immediate 
negligence  was  that  of  a  con- 
tractor who  had  been  intrusted 
with  its  performance.  Tififany 
Dom.  Rels.,  p.  510,  citing  King  v. 
Railroad  Co.  (1876),  66  N.  Y. 
181;  23  Amer.  Rep.  37;  Storrs  v. 
City  of  Utica  (1858),  17  N.  Y. 
104;  72  Amer.  Dec.  437. 

*' Drake  v.  Seattle  (1902),  30 
Wash.  81;  94  Amer.  St.  Rep. 
844;  70  Pac.  231,  city  held  bound 
to  see  that  the  signals  were  in 
place  on  each  recurring  night.  A 
city  cannot  shift  the  burden  of 
keeping  a  street  safe  for  public 
travel  upon  the  contractor  em- 
ployed in  grading  and  paving  it, 
on  the  ground  that  he  is  an   in- 


employer's  exceptional  ll\bility. 


251 


municipality  claim  exemption  from  liability  for  defects  in 
a  street  by  reason  of  its  not  accepting  the  work  of  the  con- 
tractor, where  the  defect  has  existed  long  enough  to  charge 
its  officials  with  knowledge.**"  A  city  is  chargeable  with 
notice  of  the  existence  of  a  dangerous  obstruction  in  one 
of  its  streets  where  such  defect  is  the  result  of  the  negli- 
gence  of  contractors  under  the  city,  so  as  to  dispense  with 
the  necessity  of  giving  it  express  notice  of  its  existence.^* 
In  a  group  of  cases  the  municipality  has  been  held  respon- 
sible for  the  negligence  of  a  party  who  had  undertaken, 


dependent  contractor,  and  that  the 
rule  of  rest^ondcat  superior   does 
not    apply    between    him    and    the 
citv.      Birmingham    v.    McCreary 
(1887),  84  Ala.  469;  4   So.  630; 
27   Cent.   L.   J.   598.     A    Pennsyl- 
vania case  holds  that  no  liability 
rests  upon  the  city  by  reason  of 
an   excavation    in   the    street   that 
caused    injury    to    one    using    the 
street,  where'  the  excavation   was 
made  by   one    under   an   indepen- 
dent   contract    with    the    abutting 
owner  and  in  pursuance  of  a  city 
permit.       Levenite     v.     Lancaster 
(1906\    215    Penn.    576;    64   Atl. 
782.     Where  an  excavation  in  the 
public    street    is    temporarily    and 
loosely   filled   by   the   independent 
contractor   under   the    supervision 
of    the    city's    representative    and 
pending  the  arrival   of  materials, 
it  is  held  that  the  city  must  ex- 
ercise  a   continuing   duty   to  keep 
it    safe    for    travel.      Newman    v. 
New  York   (1908),  57  Misc.    (X. 
Y.).  636;   108  N.  Y.  Supp.  676. 

"Turner  v.  Newburgh  (1888), 
109  N.  Y.  301;  16  N.  E.  344;  49 
Amer.  St.  Rep.  453.     Where  pav- 


ing materials  are  placed  in  a 
street  by  the  paving  contractor 
with  the  city's  express  permission 
it  is  liable  for  the  contractor's 
negligent  failure  to  properly 
guard  and  light  the  obstruction, 
since  by  giving  the  permit,  it  be- 
came charged  with  the  positive 
duty  to  see  that  the  proper  pre- 
cautions were  taken,  which  ap- 
parently cannot  be  delegated  by 
the  contract  providing  that  the 
contractor  shall  maintain  proper 
guards,  etc.  Godfrey  v.  New 
York  (1905).  104  App.  Div.  357; 
93     N.     Y.     Supp.    899,    affirmed 

(1906).  185  N.  Y.  563;  77  N.  E. 

1187. 

'^^  Smith    V.    St.    Joseph    (1890), 
42  AIo.  App.  392;   Indianapolis  v. 

Marold  (1900).  25  Ind.  App.  428; 

58   N.    E.   512;    Atchison    Co.   v. 

Sullivan    (1898).    7   Kans.    App. 

152;   53  Pac.    142;   4  Amer.    Neg. 

Rep.     149;     Brusso     v.     Buffalo 

(1882).  90  N.  Y.  679.   Cf.,  Omah..\ 

V.   Jensen    (1892),   35    Nebr.   68; 

52  N.  W.  833;  37  Amer.  St.  Rep. 

432. 


252       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


for  a  specific  period,  to  keep  the  whole  or  a  part  of  the 
highway  in  repair;  e.  g.,  where  the  work  of  making  repairs 
was  let  out  by  contract,  and  the  injury  was  caused  by  a 
defective  bridge ;  ^^  where  a  canal  company  had  bound 
itself  to  keep  a  certain  bridge  in  repair  and  had  failed  to ;  ®° 
where  a  county  having  charge  of  a  certain  market  house, 
and  charged  with  the  duty  to  repair  it,  left  an  opening 
(into  which  plaintiff  fell)  unguarded  and  unlighted,  in  a 
street  adjoining  the  market  place.^^  "If  the  corporation 
permits  something  to  exist  in  its  streets  and  public  ways, 


*•  Jacksonville  V.  Drew  (1882), 
19  Flor.  106;  45  Amer.  Rep.  5. 

*°  Eyler  v.  Alleghany  Co. 
(1878),  49  Md.  257;  33  Amer. 
Rep.  249. 

"Blake  v.  St.  Louis  (1867),  40 
Mo.  569.  "The  absolute  quality 
of  the  duty  of  a  municipality  to 
keep  the  highways  under  its  con- 
trol in  safe  condition  may  be 
further  illustrated  by  the  decisions 
in  which  an  action  has  been  held 
maintainable  for  injuries  caused 
by  the  negligence  of  persons  au- 
thorized to  perform  some  work 
which  rendered  the  highway's  sur- 
face abnormally  insecure,  and  had 
omitted  to  protect  the  public 
against  dangers  known  to  be  the 
natural  and  necessary  conse- 
quence of  what  they  had  under- 
taken to  do."  Note  to  Anderson 
V.  Fleming  (1903,  Ind.),  66  L.  R. 
A.  132,  citing  Badenhap  v.  Sand- 
hurst (1864,  Vict.),  1  W.  W.  & 
A.  B.  136;  King  v.  Cleveland 
(1885),  28  Fed.  835,  plaintiff 
drove  into  materials  left  on  street 
by  contractor  erecting  house;  Ma- 
gee  V.  Troy  (1888),  48  Hun  (N. 
Y.),  383,  1  N.  Y.  Supp.  541,  same 


facts.  "This  duty  {i.  e.,  as  to 
safety  of  streets,  etc.)  may  be 
further  illustrated  by  the  decisions 
sustaining  actions  to  recover  for 
injuries  caused  by  abnormal  dan- 
gers which  resulted  from  building 
operations  carried  on  by  a  con- 
tractor in  an  abutting  landowner's 
employ;  and  for  injuries  received 
by  travelers,  owing  to  the  exist- 
ence of  abnormally  dangerous 
conditions  produced  in  highways 
by  the  operations  of  railway  com- 
panies acting  under  legislative 
authority."  Note  to  Andeson  v. 
Fleming,  supra,  citing  inter  alia. 
Currier  v.  Lowell  (1834),  16 
Pick.  (Mass.),  170;  Willard  v. 
Newbury  (1850),  22  Verm.  458; 
Batty  V.  Duxbury  (1852),  24 
Verm.  155 ;  Phillips  v.  Veazie 
(1855),  40  Me.  98;  Elliott  v.  Con- 
cord (1853),  27  N.  H.  204.  The 
city  is  entitled  to  recover  over 
against  the  negligent  railway  com- 
pany. Willard  v.  Newbury,  supra. 
For  a  municipality's  liability  con- 
cerning work  on  highways,  see 
cases  cited  in  65  L.  R.  A.  650, 
et  seq. 


employer's  exceptional  liability. 


253 


by  license  or  otherwise,  which  constitutes  a  nuisance  and 
which  may  seriously  interfere  with  a  reasonable  use  of 
such  ways  by  travelers  in  the  ordinary  modes,  no  good 
reason  can  be  advanced  to  excuse  municipal  liability,  in 
event  of  damage  resulting  directly  from  such  nuisance."  ^"^ 
In  jurisdictions,  where  there  is  no  duty  resting  upon  the 
corporation  to  keep  the  streets  in  proper  repair,  there  is 
no  liability  for  acts  of  negligence  of  a  public  officer  engaged 
in  the  construction  of  a  street. °^  The  act  of  a  person  under 
a  contract  to  deliver  lumber  to  a  city,  in  piling  the  lumber 
in  a  street,  is  not  the  act  of  the  city,  and  in  the  absence  of 
notice  of  the  presence  of  the  lumber,  it  is  not  liable  in 
damage  to  one  injured  thereby.^"*     In  Pennsylvania  it  has 


"-  McQuillan's  M  u  n  i  c.  Ordi- 
nances, Sec.  437,  where  the  sub- 
ject is  exhaustively  discussed  and 
numerous  cases  cited.  Defendant 
city  had  an  independent  contractor 
build  a  subway,  requiring  the 
shifting  of  a  railway  track;  this 
the  contractor  did  without  negli- 
gence and  placed  planks  between 
the  tracks,  and  turned  same  over 
to  the  city;  passing  vehicles  wore 
off  the  planks  and  a  bicyclist  was 
injured;  the  city  was  held  liable, 
it  being  its  duty  to  keep  its  streets 
in  repair.  Riml^y  v.  Philadelphia 
(1904,  Penn.),  57  Atl.  347;  16 
Amer.  Neg.  R.  608,  n. 

"Jensen  v.  Waltham  (1895), 
166  Mass.  344;  44  N.  E.  339,  as- 
sistant superintendent  of  streets; 
McCann  v.  Waltham  (1895),  163 
Mass.  344;  40  N.  E.  20,  laborer 
employed  by  superintendent  of 
streets.  The  principal  employer 
was  held  not  to  be  responsible 
where  plaintiff  had  fallen  into  an 
open  trench  which  had  been  dug 


in  a  street  by  permission  of  the 
authorities  (and  hence  was  not 
per  se  a  nuisance).  See  Smith 
V.  Simmons  (1883),  103  Penn. 
32;  49  Amer.  Rep.  113.  In  a 
later  case  growing  out  of  the 
same  accident,  the  municipality 
which  had  granted  the  license  was 
held  not  responsible,  and  the  gen- 
eral rule  was  laid  down  that  such 
a  corporation  when  it  grants  to 
one  a  license  for  a  purpose  proper 
and  lawful  is  not  liable  to  one 
injured  by  reason  of  the  misuse 
or  abuse  of  that  license  whether 
the  same  be  by  an  independent 
contractor  for  the  work  from  the 
licensee,  or  by  the  licensee  him- 
self. Susquehanna  Depot  v. 
Simmons  (1886),  112  Penn.  384; 
5  Atl.  434;  56  Amer.  Rep.  317. 

"^EVANSVILLE    V.     SeNHENN 

(1897),  151  Ind.  42;  47  N.  E.  634; 
51  N.  E.  88;  41  L.  R.  A.  728;  68 
Amer.  St.  Rep.  218.  A  rope  at- 
tached to  a  building  being  moved 
through    a   street,   with   the   city's 


254       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


been  held  that  a  city  may  delegate  its  duty  to  keep  its  streets 
in  a  reasonably  safe  condition,  so  as  to  escape  liability.®^ 

Sec.  142.     Same,  Constructing  Sewers. 

A  city  is  liable  for  injuries  sustained  by  reason  of  the 
lack  of  suitable  barriers  around  a  sewer  trench,  although 
the  sewer  is  being  constructed  under  a  contract  which  made 
it  the  duty  of  the  contractor  to  erect  such  barriers.^"  The 
plaintiff  has  been  held  entitled  to  recover,  in  numerous  cases, 
damages  for  injuries  received  through  the  contractor's 
negligence  in  excavating  for  sewers,  etc.'*'     On  the  ground 


consent,  was  left  stretched  one  and 
a  half  feet  above  the  street,  while 
not  in  use,  for  half  an  hour  in  the 
evening;  plaintiff  passing  along 
fell  over  it  and  was  injured.  It 
was  held  that  the  city  would  be 
liable  only  when  it  had  reason- 
able notice  of  such  defect  or 
might  have  known  of  it  by  proper 
diligence  and  that  this  was  not 
shown.  Craig  v.  Inhabitants,  etc. 
(1908,  Mass.),  85  N.  E.  855. 

'^Hepburn  v.  City  (1892),  149 
Penn.  St.  335;  24  Atl.  279;  33 
Am.  St.  482;  152  R.  A.  821; 
Painter  v.  Mayor  (1863),  46 
Penn.  St.  213.  The  Newfound- 
land courts  hold  that  in  the  ab- 
sence of  a  statute  the  municipal 
Board  of  Works  was  not  obliged 
to  keep  a  certain  road  in  rcp.iir. 
and  hence  was  not  liable  to  one 
who  drove  against  a  gravel  pile 
negligently  left  in  the  road  by  a 
contractor  employed  to  rep  ;ir  the 
road.  Duchemin  v.  Board,  etc. 
(1880),  Newf.  R.  236. 

'•""Omaha  v.  Jensen  (1892),  35 
Nebr.  68;  52  N.  W.  883;  Zl  Amer. 
St.  Rep.  432. 


"  DooLEY  V.  Sullivan  (1887), 
112  Ind.  451;  14  N.  E.  566;  2 
Amer.  St.  Rep.  209;  Wilson  v. 
Wheeling  (1882),  19  W.  Va. 
323;  42  Amer.  Rep.  780;  Butler 
V.  Bangor  (1877),  67  Me.  385. 
The  fact  that  an  injury  received 
by  a  person  who  fell  into  a  sewer 
trench  which  crossed  the  street 
along  which  he  was  walking  re- 
sulted from  the  momentary  fail- 
ure of  the  servants  of  a  street 
railroad  company  to  replace  the 
barriers  which  they  were  in- 
structed to  remove  whenever  a 
car  passed,  does  not  relieve  the 
defendant  from  liability;  for  if 
the  municipality  sees  fit  to  in- 
trust to  them  the  duty  of  keeping 
the  trench  properly  guarded,  it  is 
answerable  for  their  negligence, 
momentary  or  otherwise.  Bles- 
sington  v.  Boston  (1891),  153 
Mass.  409;  26  N.  E.  1113.  Where 
one  who  iiad  contracted  with  the 
water  board  of  a  city  to  build 
a  sewer  was  required,  by  the  terms 
of  the  contract  to  remove  the 
sheath-piling,  and  in  consequence 
of    doing    so    an    adjacent    house 


employer's  exceptional  llvbility. 


255 


that  the  work  of  dredging  out  a  canal  for  a  city  was  done 
by  an  independent  contractor,  the  city  was  held  not  liable 
to  one  for  the  flooding  of  his  fields  thereby,  by  the  building 
of  a  dam  without  constructing  a  by-pass  to  carry  off  the 
water,  though  tlie  city  had  an  inspector  of  the  work  who 
located  the  dam.^'^ 

Sec.  143.     Same,   Grading  Street. 

Where  a  contractor  raised  the  grade  of  a  street,  in  ac- 
cordance with  an  ordinance  and  the  plans  and  specifications 
thereunder  and  as  a  consequence  dirt  and  sand  were  de- 
posited on  the  plaintiff's  lot,  the  city  was  held  liable  for  the 
damage,  notwithstanding  the  employment  of  a  contractor; 
since  the  injur}'  was  caused,  not  by  the  contractor's  method 
of  doing  the  work,  but  by  his  following  the  instructions 
given  him.^^  A  municipal  corporation  can  not  escape  lia- 
bility for  injury  caused  by  refuse  left  piled  in  the  street 
upon  the  completion  of  the  work  of  re-setting  a  curb,  upon 
the  theory  that  the  work  being  done  by  the  abutting  owner 
at  its  direction,  was  by  an  independent  contractor  for  whose 


settled  and  was  injured,  the  city 
was  held  liable  for  the  damages. 
Lockwood  V.  New  York  (1858), 
2  Hilt.  (N.  Y.),  66.  In  England 
it  is  held  that  a  district  council, 
in  the  construction  of  a  sewer, 
owes  the  duty  to  an  abutting 
owner  of  doing  the  work  so  as 
not  to  injure  a  gas  main  and 
cause  the  escape  of  gas  into  his 
house  so  as  to  cause  an  explosion 
therein,  and  it  cannot  escape  lia- 
bility for  such  an  injury  under 
the  plea  that  it  had  delegated  the 
work  to  an  independent  con- 
tractor. Hardaker  v.  Idle  Dis- 
trict Council   (C.  A..  1896).  1  Q. 


B.  D.  335;  65  L.  J.,  Q.  B.  (N.  S.), 
363.  Where  there  was  evidence 
that  a  fifteen-year-old  boy  while 
on  an  errand  at  night  and  at- 
tempting to  cross  a  street  di- 
agonally fell  into  an  excavation 
for  a  sewer  and  was  injured,  the 
city  was  held  liable,  and  it  was 
no  defense  that  the  work  was 
done  by  a  contractor.  Baker  v. 
Grand  Rapids  (1897.  Mich.),  1 
Amer.  Xeg.  Rep.  90,  citing  cases. 

•*  White  V.  Philadelphia  (1902). 
201  Penn.  512;  51   Atl.  332. 

"  East  St.  Louis  v.  Murphy 
(1899),  89  Ills.  App.  22. 


256       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

acts  it  was  not  responsible.  "Property  owners,  engaged 
in  work  on  a  city  street,  in  obedience  to  the  requirements 
of  an  ordinance,  are  not  contractors  exercising  an  inde- 
pendent employment,  over  whom  the  municipal  authorities 
have  no  control."  ^"^  When  a  city,  acting  within  its  gen- 
eral powers  to  improve  streets,  makes  a  contract  for  grad- 
ing a  street,  by  which  the  contractors  in  consideration  of 
doing  such  grading  are  to  receive  and  appropriate  to  their 
own  use  all  the  stone  in  the  street,  and  the  contractors  ac- 
cordingly proceed  to  remove  the  stone,  the  city  is  respon- 
sible for  their  acts  in  the  premises. ^"^  On  the  other  hand, 
it  was  declared  that  where  a  contractor  in  paving  a  street 
unnecessarily  deposits  earth  upon  an  abutting  lot,  the 
corporation  is  not  liable  to  the  lot  owner. ^*^- 


""■  Meyers  v.  City  of  Philadel- 
phia (1907),  217  Penn.  159;  66 
Atl.  251;  10  L.  R.  A.  (N.  S.), 
678,  citing  Trego  v.  Honeybrook 
(1894),  160  Pa.  St.  76;  28  Atl. 
639.  Where  the  excavation  work 
incident  to  carrying  out  a  con- 
tract for  the  grading  of  a  street 
was  so  negligently  done  that  a 
large  amount  of  water  was  col- 
lected against  plaintiff's  wall,  the 
defendant  city  was  held  liable  on 
the  ground  that  the  work  was 
done  under  the  directions  of  its 
surveyor,  in  accordance  with  a 
power  expressly  reserved  in  the 
contract.  Lacour  v.  New  York 
(1854),  3  Dner   (N.  Y.),  4C6. 

"'Rich  v.  Minne.\polis  (1887). 
37  Minn.  423;  35  N.  W.  2;  5 
Amer.   St.  Rep.  861. 

'"■Fuller  V.  Grand  Rapids 
(1895),  105  Mich.  529;  63  N.  W. 
530.  So,  also,  the  fact  that  a 
city  fails  to  include  in  a  contract 


for  the  grading  of  a  street,  a 
provision  that  the  contractor  shall 
care  for  and  remove  all  surface 
water,  sewage  and  drainage  which 
would  be  interfered  with  by  such 
grading,  does  not  render  the  city 
liable  for  the  negligence  of  the 
contractor  in  failing  to  provide 
for  the  removal  of  surface  water 
and  sewage.  White  v.  New  York 
(1897),  15  App.  Div.  (N.  Y.), 
440;  44  N.  Y.  Supp.  454.  Where 
a  city  in  grading  a  street  finds  it 
necessary  to  build  a  retaining 
wall  and  the  work  is  done  by  a 
contractor,  it  is  liable  for  an  en- 
croachment upon  an  adjoining 
owner's  land  and  for  damages 
caused  by  using  poor  material, 
where  the  contract  provided  that 
the  wall  should  be  placed  where 
indicated  on  the  plans  prepared 
by  the  city  and  the  materials  used 
should  be  subject  to  the  inspec- 
tion of  the  commissioner  of  street 


employer's  exceptional  liability 


257 


Sec.  144.     Same,  as  to  Bridges, 

A  municipality  has  been  held  not  liable  fur  injuries 
occasioned  by  the  collapse  of  a  bridge  while  it  is  under  con- 
struction by  an  independent  contractor. ^^^  But  a  city  was 
held  liable  where  an  injury  was  due  to  the  dangerous  con- 
dition of  a  highway  bridge  under  repair  owing  to  its  not 
having  been  barricaded. ^^* 

Sec.  145.     Same,  Necessity  as  to  Notice. 

In  those  cases  in  which  the  person  doing  the  work  in 
question  was  a  contractor  employed  by  the  city  itself  and 
in  which  the  danger,  which  resulted  in  the  injury  was  a 
necessary  incident  of  the  operations,  it  is  not  prerequisite 
to  recovery  that  the  city  should  have  received  special  notice 
of  the  dangerous  conditions. ^^^  So  also  where  the  dan- 
gerous conditions  were  inseparably  connected  with  work 
performed  with  the  city's  express  sanction,  though  not  by 
one  contracting  with  it,  e.  g.,  a  gas  company  laying  pipe 
through  the  streets,  and  leaving  an  excavation  therefor 
uneuarded.^^"  On  the  other  hand,  it  is  sometimes  said  that 
if  the  tortious  act  which  created  the  danger  was  collateral 
in  its  nature,  the  city  is  not  chargeable  with  responsibility 


improvements  and  it  appeared  that 
the  wall  was  built  under  a  city 
inspector's  supervision.  The  fail- 
ure of  such  owner  to  protest  at 
the  time  of  building  the  wall  will 
not  estop  him  from  claiming  dam- 
ages. Goldschmid  v.  Maj-or,  etc. 
(1897,  N.  Y.  App.  Div.),  1  Amer. 
Neg.  Rep.  508. 

'"'Wood  V.  Watertown  (1890), 
58  Hun  (N.  Y.),  298;  11  N.  Y. 
Supp.  864. 

'"  Hawxhurst     v.     New     York 


(1887),  43  Hun.  588.  As  to  coun- 
ties,  see  Sec.  147. 

'"°Brusso  V.  Buflfalo  (1882),  90 
N.  Y.  679 ;  Birmingham  v. 
McCrary  (1887),  84  Ala.  469;  4 
So.  630;  27  Cent.  Law  J.  598; 
Om.\ha  v.  Jensen  (1892),  35 
Neb.  68;  52  N.  W.  833;  Z7  Amer. 
St.  Rep.  432;  Sterling  v.  Schff- 
macher   (1893).  47  Ills.  App.   141. 

'""Russell  v.  CoLUMBI.^  (1881), 
74  Mo.  480;  41  Amor.  Rep.  325. 


258       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


unless  notice,  actual  or  constructive,  is  established.^^'  A 
municipal  ordinance  duly  enacted,  requiring  an  abutting 
owner  to  build  a  sidewalk  in  front  of  his  premises,  subject 
to  the  city's  supervision  and  obligating  the  city  to  pay  part 
of  the  cost,  was  held  not  to  render  the  city  liable  for  the 
negligence  of  the  owner's  contractor  in  so  placing  a  barri^er 
around  the  walk  that  a  passerby  fell  over  it.  The  city,  it 
was  said,  would  be  liable  only  for  failing  to  put  the  walk 
in  condition  after  due  notice.^*'^ 


Sec.  146.     Same,   Contractor's  Trespasses. 

A  city  council,  empowered  to  abate  nuisances  and  also 
to  improve  the  channel  of  a  river  within  the  city  limits, 
passed  an  ordinance  declaring  a  part  of  the  river  in  the 
city  limits  a  public  nuisance,  and  providing  for  its  abate- 
ment by  excavating  a  new  channel  across  plaintiff's  lot. 
Afterwards,  under  a  contract  duly  let.  acts  were  done  by 
the  contractor  constituting  a  trespass  on  plaintiff's  land. 
The  city  was  held  liable,  the  council's  action  being  within 

"'Pettengill    v.    Yonkers       by   reason   of   leaving   the   abrupt 


(1889),  116  N.  Y.  558;  22  N.  E. 
1095;  15  Amer.  St.  Rep.  442; 
Turner  v.  Neweurgh  (1888),  109 
N.  Y.  301 ;  16  N.  E.  344;  4  Amer. 
St.  Rep.  453;  Ev.nnsville  v.  Sen- 
HENN  (1898),  151  Ind.  42;  47  N. 
E.  634;  51  N.  E.  88;  41  L.  R.  A. 
728;  68  Amer.  St.  Rep.  218,  in 
which  case  a  person  who  had  con- 
tracted to  deliver  lumber  had 
piled  it  insecurely  in  a  street; 
Sweet  V.  Gloversville  (1877),  12 
Hun  (N.  Y.),  302,  in  which  plain- 
tiff was  injured  by  stepping  in  a 
sidewalk  depression  caused  by 
uneven  grading  and  he  claimed 
the  injury  was  caused  not  by 
negligence  in   doing  the  work  but 


descent  unguarded ;  the  court  held 
the  lack  of  evidence  authorizing 
the  jury  to  find  that  the  city  had 
notice  of  the  defect  was  fatal  to 
the  plaintiff's  claim. 

^"^  Thompson  v.  Vv'est  Bay  City 
(1904),  137  Mich.  94;  100  N.  W. 
280;  16  Amer.  Neg.  R.  607,  n. 
Cf.,  Wright  v.  Muskegon  (1905), 
140  Mich.  215;  103  N.  W.  558, 
wherein  the  failure  of  one  build- 
ing a  sidewalk  under  a  county 
contract,  to  place  guards  and 
lights,  was  held  not  negligen.ce 
for  which  the  city  was  respon- 
sible, where  it  exercised  no  super- 
vision over  the  work. 


employer's  exceptional  liability. 


259 


its  general  powers  and  taken  in  the  belief  that  it  was  exer- 
cising a  lawful  power  for  the  public  good.^"^ 

Sec.  147.     Counties. 

The  liability  of  cities  for  dangerous  condition  of  their 
streets  being  constructed  or  repaired  by  independent  con- 
tractors, has  been  applied  to  counties  and  shires.^"*  And 
where  a  contractor  turns  over  a  bridge  to  the  proper  county 
authorities  and  they  accept  it  as  a  discharge  of  his  contract, 
they  thereby  become  responsible  to  the  traveling  public  for 
its  safe  condition;  and  if  a  traveler  is  injured  by  reason  of 
its  defective  condition,  he  has  an  action  against  the  county, 
provided  such  an  action  is  given  by  the  statute  under  other  cir- 
cumstances. ^^^  In  Pennsylvania  a  county  was  held  not  liable 
where  an  injury  was  received  by  a  person  who  turned  aside 
to  avoid  a  pile  of  earth  on  a  pavement  and  fell  into  a  trench, 
dug  for  the  purpose  of  laying  a  curbstone. ^^^ 


^•^  Hamilton  v.  Fond  du  Lac 
(1876),  40  Wise.  47. 

'^"Park  V.  Adams  Co.  (1891),  3 
Ind.  App.  536;  30  N.  E.  147;  but 
see  Board,  etc.,  v.  Allman  (1895), 
142  Ind.  573;  42  N.  E.  206. 
Anne  Arundel  Co.  v.  Duvall 
(1880),  54  Md.  350;  39  Amer. 
Rep.  393;  Bell  v.  Poriland  (1876), 
2  Vict.  L.  R.  197.  Thus,  a  county 
was  held  liable  where  the  danger- 
ous condition  complained  of  aro:?e 
from  not  guarding  a  bridge  the 
floor  of  which  was  being  laid. 
Park  V.  Adams  Co.,  supra;  contra, 
Board,  etc.,  v.  Allman,  supra. 

•"Vickers  v.  Cloud  Co.  (1898), 
59  Kans.  86;  52  Pac.  73.  As  to 
the  liability  of  the  county  for  the 
acts  of  subordinate  agents,  see 
Abbett  V.  Johnson  Co.  (1887), 
114  Ind.  61. 


"-Eby  V.  Lebanon  Co.  (1895), 
166  Penn.  632;  31  Atl.  332.  A 
highway  board  instructed  its  sur- 
veyor to  employ  a  certain  con- 
tractor to  repair  a  road.  In  the 
course  of  the  work,  with  which 
the  board  did  not  interfere,  the 
contractor's  servants  left  stones 
on  the  highway  at  night,  without 
placing  a  light  to  show  where 
they  were  and  a  traveler  drove 
again.st  the  obstruction  and  was 
injured.  The  court  held  there 
was  no  evidence  of  negligence  on 
the  part  of  the  highway  board  or 
its  surveyors,  but  did  not  touch 
upon  the  duty  of  the  board  to 
keep  the  highway  safe  for  travel 
as  being  primary  and  non-dele- 
gable.  Rcid  V.  Darlington,  etc.. 
Board  (1877),  41  J.  P.  581,  Q. 
B.  D. 


260       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  148.     Public  Utilities  Companies. 

In  a  head  note  by  the  court,  it  has  recently  been  stated : 
"As  a  municipal  corporation  would  itself  be  liable  to  a 
citizen  for  injuiy  sustained  by  reason  of  its  reducing  a 
sidewalk  to  a  dangerous  condition,  it  is  evident  that  the 
privilege,  granted  by  it  to  a  public  utility  company,  of  mak- 
ing excavations  therein  can  not  authorize  such  company  to 
leave  the  excavations  so  made  unguarded,  and  to  dispense 
with  all  precautions  whereby  those  who  are  rightfully  using 
the  sidewalk  may  be  warned  of  their  existence.  Nor  can 
the  company,  in  such  case,  escape  liability  on  the  plea  that 
an  excavation  made  under  the  authority  conferred  on  it 
and  for  its  account  and  benefit  has  been  made  by  an  inde- 
pendent contractor."  ^^^  Where  a  gas  company  was  licensed 
to  distribute  heavy  gas  pipes  in  the  street  it  was  held 
charged  with  the  duty  of  blocking  them  so  as  to  avoid 
injury  to  children  playing  in  the  street,  and  it  can  not  dele- 
gate such  duty  to  an  independent  contractor.^^^ 

Sec.  149.     Public  Charities. 

A  very  eminent  authority  ^^^  has  stated  that  "there  are 
these  diverse  holdings,  upon  the  question  whether  a  public 
charitable  corporation  or  trust  is  liable  for  the  negligence 
or  other  torts  of  its  agents  and  servants,"    (1)     .    ,    .; 


"'Rock  v.  American  Con- 
struction Co.  (1908),  120  La. 
831;  45  So.  741;  14  L.  R.  A.  (N. 
S.),  653.  The  non-delegable  qual- 
ity of  a  carrier's  duties  is  the 
basis  of  certain  rulings  to  the 
effect  that  a  steamship  company 
is  liable  for  the  negligence  of 
stevedores  in  regard  to  bringing 
on  board  and  placing  in  a  certain 
part  of  the  ship  a  passenger's 
baggage,  and  for  an  assault  on  a 


passenger  committed  by  one  con- 
tracting with  it  to  carry  their 
baggage  by  tugs  to  its  steamers. 
The  Dresden  (1894),  62  Fed.  438; 
Barrow  Steamship  Co.  v.  Kane 
(1898),  88  Fed.  197. 

"*  0'Har.\  v.  Laclede,  etc.,  Co. 
(1903).  131  Mo.  App.  428;  110  S. 
W.  642. 

"'Huffcut  on  Agency,  2d  ed., 
Sec.  261. 


employer's   EXCEPTIONAIi   LIABILITY. 


261 


"(2)  The  doctrine  that  the  charitable  funds  can  not  be 
reached  in  payment  of  damages  for  torts,  has  been  doubted 
or  repudiated  by  other  courts,  but  there  has  been  no  agree- 
ment as  to  the  nature  and  extent  of  the  liabihty  of  the 
charity,  (a)  The  general  doctrine  of  respondeat  superior 
has  been  applied  and  the  charity  held  like  any  other  master 
for  the  torts  of  servants. ^^"  (b)  This  general  doctrine  has 
been  admitted  but  it  has  been  held  that  one  accepting  the 
services  or  bounty  of  the  charity  is  a  mere  licensee  and 
must  take  the  service  as  he  finds  it,  that  is  'that  there  is 
no  liability  on  the  part  of  the  charitable  corporations,  aris- 
ing out  of  the  administration  of  the  charity,  to  those  who 
accept  their  bounty.'  ^^^  Under  this  doctrine  there  is  a 
further  divergence  of  opinion  as  to  whether  one  who  pays 
for  the  service  is  a  recipient  of  the  bounty.  One  case  holds 
that  he  is,  treating  the  payment  as  a  mere  contribution  to 
charity. ^^^  Other  cases  seem  to  regard  the  payment  as 
imposing  a  special  duty  toward  the  payer  for  breach  of 
which  an  action  will  lie.'^^  (c)  The  general  doctrine  of  re- 
spondeat superior  has  not  been  admitted,  and  recovery  is  lim- 
ited to  those  cases  where  it  is  shown  that  the  administrators  of 
the  charity  were  themselves  negligent  in  the  appointment 
of  incompetent  servants  or  in  the  discharge  of  some  other 
corporate  or  specially  imposed  duty.^^°     The  theory  of  this 


"'  Citing  Glavin  v.  Rhode 
Island  Hospital  (1879),  12  R.  I. 
411;  34  Amcr.  Rep.  675;  Foreman 
V.  Mayor  (1871),  L.  R..  6  Q.  B. 
214.  "See,  also,  Donaldson  v. 
Commissioners  (1890),  30  New 
Bninsw.  279." 

"'  Citing  Powers  v.  Massachu- 
setts, etc.,  Hospital  (1899),  101 
Fed.  896.  "And  see  Gooch  v. 
Association  (1872),  109  Mass. 
558." 

^  Same  cases  last  cited. 


"•Citing  Ward  v.  St.  Vincent's 
Hospital  (1899),  39  N.  Y.  App. 
Div.  624;  57  N.  Y.  Supp.  784; 
Richardson  v.  Carbon,  etc.,  Co. 
(1893),  6  Wash.  52;  10  Wash. 
648;  20  L.  R.  A.  338.  "See 
Glavin  V.  Rhode  Island  Hospital, 
supra." 

'*  Citing  McDoN.\LD  v.  Massa- 
chusetts, ETC.,  Hospital  (1876), 
120  Mass.  432;  21  Amcr.  Rep. 
529;  Union,  etc.,  R.  v.  Artist 
(1894).    60    Fed.     365;     Joel    v. 


262       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

class  of  cases  seems  to  be  the  one  most  generally  acceptable, 
namely,  that  while  a  charitable  corporation  may  be  liable 
for  negligence  in  the  performance  of  a  corporate  duty,  the 
doctrine  of  respondeat  superior  is  not  applicable  to  it  so 
as  to  render  it  liable  for  the  torts  of  its  servants.^^^  This 
is  merely  an  extension  to  charities  of  a  doctrine  sometimes 
applied,  that  officers  or  trustees  for  public  purposes  are  ex- 
empt from  liability  for  torts  of  servants  but  not  for  their 
own  torts ;  qualified  by  the  further  consideration  that  some 
duties  are  imposed  upon  public  bodies  in  such  a  way  that 
they  can  not  rid  themselves  of  liability  by  putting  the  per- 
formance of  the  duty  into  hands  of  servants. ^^^  Under 
this  view  a  charitable  hospital,  for  example,  has  imposed 
upon  it  the  duty  to  use  due  care  to  provide  safe  and  suit- 
able hospital  appliances  and  skilled  and  competent  physi- 
cians, surgeons  and  nurses,  and  for  a  failure  to  fulfill  this 
duty  it  would  be  liable  to  one  injured  thereby;  but  having 
fulfilled  this  duty,  it  is  not  liable  for  the  negligence  of  such 
attendants  or  servants. ^^^  It  is  further  to  be  noted  that 
physicians  and  surgeons  are  not  the  servants  of  the  hospital 
or  other  body  that  furnishes  them  and  that  in  any  event 
liability  can  attach  only  for  negligently  furnishing  incom- 
petent practitioners.^^*  Two  classes  of  corporations  or 
agencies  must  be  distinguished.  First,  where  a  corporation 
or  board  of  managers  exercises  governmental  powers  as  an 


Woman's  Hospital  (1895),  89 
Hun  (N.  Y.),  7Z;  VanTassell  v. 
Manhattan,  etc.,  Hospital  (1891), 
39  N.  Y.  St.  R.  781;  15  N.  Y. 
Supp.  620;  He.xrns  v.  Waterbury 
HospiT.'^L  (1895),  66  Conn.  98;  33 
Atl.  595;  31  L.  R.  A.  224; 
EiGHMY  V.  Union  Pacific  R. 
(1895),  93  Iowa,  538;  61  N.  W. 
1056;  27  L.  R.  A.  296;  Richardson 
V.  Carbon,  etc.,  Co.,  supra. 


'^  "See  the  ver}^  full  and  able 
discussion  of  Hammersley,  J.,  in 
Hearns  v.  Waterbury  Hospital," 
supra. 

'"  Citing  Mersey  Docks  v.  Gibbs 
(1864),  L.  R.,  1  H.  L.  93. 

^^  Citing  Union  Pacific  Railway 
V.  Artist,  supra;  Hearns  v.  Water- 
bury Hospital,  supra. 

'^Citing  Huff.  Agcy.,  2d  ed.. 
Sec.  232. 


employer's  exceptional  llvhilitv. 


263 


agent  of  the  state  or  municipality,  it  falls  under  the  head 
of  public  agencies. ^-^  Second,  private  corporations  orga- 
nized for  the  protection  of  some  interest  of  their  supporters, 
as  a  'protective  association,'  supported  by  insurance  com- 
panies, are  not  public  charities  merely  because  they  inci- 
dentally render  aid  gratuitously  to  outsiders."  ^~'' 

The  funds  and  property  of  a  university  organized  as  a 
private  corporation  without  power  to  declare  dividends  and 
dependent  on  the  income  from  its  property  and  upon  gifts 
and  endowments  to  carry  out  its  purposes  of  disseminating 
learning  to  all  persons  of  good  character  and  suitable  pro- 
ficiency, are  held  in  trust  and  can  not  be  diverted  to  pay 
damages  to  a  student  losing  an  eye  through  the  negligent 
act  of  a  professor  while  discharging  his  duties. ^^''    In  a  very 


^^  Citing  City  of  Richmond  v. 
Long  (1861),  17  Gratt.  (Va.), 
375;  94  Amer.  Dec.  461;  Benton 
V.  Trustees  (1885),  140  Mass. 
13;  54  Amer.  Rep.  436;  William- 
son V.  Louisville,  etc.,  School 
(1894),  95  Ky.  251;  44  Amer.  St. 
Rep.  243. 

""Citing  Newcomb  v.  Boston, 
ETC.,  Dep.\rtment  (1890),  151 
Mass.  215;  24  N.  E.  39;  6  L.  R. 
A..  778.  Cf.,  Fire  Insurance 
P.\TR0L  V.  Boyd  (1888),  120  Penn. 
St.  624;  6  Amer.  St.  745;  15  Atl. 
553;  Chapin  v.  Holyokc.  etc., 
Association  (1896),  165  Mass. 
280;  42  N.  E.  1130;  see,  also, 
Wabash,  etc.,  R.  v.  Kelly  (1899), 
153  Ind.  119. 

"'Parks  v.  Northwestern 
University  (1905),  218  Ills.  381; 
75  N.  E.  991;  4  Amer.  &  Eng. 
Ann.  Cas.  103.  "The  only  case 
we  find  in  tliis  country  express- 
ing a  contrary  view  is  Glavin  v. 


Rhode  Island  Hospital  (1879), 
12  R.  I.  411;  34  Amer.  Rep.  675, 
and  since  tliat  decision  the  legis- 
lature of  Rhode  Island  has,  by 
appropriate  enactment,  created  the 
exemption  here  contended  for  by 
the  appellee  university  as  to  all 
hospitals  whose  funds  are  exclu- 
sively devoted  to  charitable  pur- 
poses. Gen.  Laws  of  Rhode  Island, 
Chap.  177,  Sec.  38."  Per  Boggs, 
J.  "The  view  taken  in  the  Rhode 
Island  decision  was  approved  in 
Donaldson  v.  Hospital  (1890),  30 
New  Brunsw.  279.  See,  also, 
Brcux  v.  Montreal  (1896),  9 
Queb.  (S.  C),  503."  Note  in  4 
Amer.  &  Eng.  Ann.  Cas.   106. 

^™F.\RRiGAN  V.  Peve.\r  (1906), 
193  Mass.  147,  151;  78  N.  E.  865; 
8  Amer.  &  Eng.  Ann.  Cas.  1109; 
118  Amer.  St.  Rep.  484,  citing 
inter  alia.  Heriot's  Hospital  v. 
Rose  (1846),  12  CI.  &  F.  507; 
Perry  v.  House  of  Refuge  (1884), 


264       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY 

recent  case,  defendants,  trustees,  "were  serving  without 
compensation  in  the  supervision  of  a  home  for  indigent 
boys,  which  was  established  for  the  purpose  of  enabhng 
them  to  become  self-supporting  and  efficient  members  of 
society;  their  duty  to  plaintiff  in  the  exercise  of  this  posi- 
tion did  not  extend  beyond  the  requirements  of  using  rea- 
sonable care  to  select  competent  servants,  and  the  demands 
of  substantial  justice  are  met,  if  as  charitable  trustees  they  are 
not  charged  with  the  negligence  of  those  so  employed."  ^^^ 
In  another  more  recent  case  a  church  owned  and  possessed 
certain  real  estate  on  which  it  was  erecting  a  building  for 
church  purposes,  and  caused  to  be  erected  a  scaffolding 
therein  for  its  employees  and  others  engaged  in  erecting 
the  church ;  plaintiff  was  employed  by  a  contractor,  who  had 
contracted  with  defendant  to  tint  the  ceiling  and  walls,  and 
in  such  service,  while  properly  using  the  scaffolding,  plain- 
tiff was,  because  of  its  defective  condition,  thrown  to  the 
floor  and  injured.  The  defense  was  that  being  a  charity, 
defendant  was  not  liable,  but  the  court  said,  after  review- 
ing and  distinguishing  very  many  cases :  "The  defendant 
corporation  is  a  legal  entity  with  which  the  law  has  to  deal. 
It  uses,  in  the  accomplishment  of  its  objects,  property 
which  it  owns  and  manages  and  in  such  management  it 
acts  by  and  through  chosen  agents.  Incident  to  such  man- 
agement are  duties  which,  unperformed  or  badly  performed, 
may  support  corporate  obligations.  Property  conveyed  to 
it,  generally,  is  presumed  to  be  conveyed  for  the  statute 
purposes  of  its  organization,  and  is  subject  to  the  risks  of 
corporate  management."  ^'^'-^ 

63    Md.    20;    Downes    v.    Harper  to    be    clearly    correct."      Note    to 

Hospital    (1894),    101    Mich.    555;  8  Amer.  &  Eng.  Ann.   Cas.   1111. 

60  N.  W.  42;  45  Amcr.  St.   Rep.  ^  Bruce    v.     Central     M.     E. 

427;     Pepke     v.     Grace     Hospital  Church    (1907),    147    Mich.   230; 

(1902),  130  Mich.  493;  90  N.  W.  110  N.  W.  951;  11  Amer.  &  Eng. 

278.     "This   decision   would   seem  Ann.  Cas.  151    (per  Ostrander,  J., 


employer's  exceptional  llvbility. 


265 


"A  majority  of  the  recent  cases  deciding  the  question  of 
the  liabih'ty  of  a  private  charitable  institution  for  the  negli- 
gence of  its  employers  uphold  the  rule  that  it  is  not  liable 


Blair,  J.,  concurring)  ;  citing 
inter  alia,  Donnellj'  v.  Boston, 
etc.,  Cemetery  (1888).  146  Mass. 
163;  15  N.  E.  505;  Shepard  v. 
Creamer  (1884),  160  Mass.  496; 
36  N.  E.  475;  McAllister  v.  Bur- 
gess (1894),  161  Mass.  271;  37  N. 
E.  173;  Davis  v.  Central  Congre- 
gational Society  (1880),  129  Mass. 
367;  37  Amer.  Rep.  368;  Church, 
etc..  V.  Buckhart  (1842).  3  Hill 
(N.  Y.),  193;  contra,  Haas  v. 
Missionary  Society  (1893),  6 
Misc.  (N.  Y.),  281;  20  N.  Y. 
Supp.  868.  In  a  separate  opinion 
by  Carpenter,  J.,  in  which  five 
other  justices  concurred,  it  is' 
said.  p.  250:  "We  are  compelled 
to  hold  that  funds  devoted  to  a 
religious  purpose  are  charitable 
trust  funds.  I  conclude,  there- 
fore, that  we  cannot  hold  the 
principle  in  Downes  v.  Harper 
Hospital  (1894).  101  Mich.  555, 
60  N.  W.  42,  45  Amer.  St.  Rep. 
427,  inapplicable,  upon  the  ground 
that  the  church  funds  are  not 
charitable  trust  funds."  (The 
court  distinguished  the  Downes 
case  from  the  one  at  bar,  on  the 
ground  that  in  the  former  he  was 
a  beneficiary  of  the  charity  and 
in  the  latter  an  employee  of  de- 
fendant's contractor.)  "We  re- 
ceive great  aid  (in  determining  the 
principle  underlying  the  Downes 
case)  by  examining  similar  de- 
cisions made  by  other  courts. 
Among  those  decisions  are  Rich- 
mond V.   Long    (1867),    17  Gratt. 


(Va.),  375;  94  Amer.  Dec.  461; 
Collins  v.  New  York,  etc.,  Medi- 
cal School  (1901),  59  N.  Y.  App. 
Div.  63;  69  N.  Y.  Supp.  106; 
Connor  v.  Sisters,  etc.  (1900),  10 
Ohio  Dec.  86;  7  Ohio  (N.  P.), 
514,"  and  others  cited  in  this  con- 
nection in  this  work.  Continuing, 
the  court  says  (page  253)  :  "The 
ground  on  which  liability  is 
denied  in  nearly  all  the  foregoing 
cases  is  that  ...  it  would 
oppose  the  will  of  the  founder  of 
the  trust  to  pay  from  the  trust 
funds  damages  caused  by  an 
agent's  torts.  .  .  .  But  I  can 
see  no  ground  upon  which  it  may 
be  held  that  the  rights  of  those 
who  are  not  beneficiaries  of  a 
trust  can  in  any  way  be  affected 
by  the  will  of  its  founders.  The 
rights  of  such  persons  are  those 
created  by  general  laws  and  the 
duties  of  those  administering  the 
trust  to  respect  those  rights  are 
also  created  by  general  laws.  .  . 
I  conclude  from  this  reasoning 
that  corporations  administering  a 
charitable  trust,  like  all  other 
corporations,  are  subject  to  the 
general  laws  of  the  land  and  can 
not.  therefore,  claim  exemption 
from  responsibility  for  the  torts 
of  their  agents,  unless  that  claim 
is  based  on  a  contract  with  the 
person  injured  by  such  tort.  .  . 
The  principle  of  non-liability  de- 
clared in  the  Downes  case  is 
limited  to  those  who  are  bene- 
ficiaries of  a  trust  fund." 


266       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY . 

where  it  has  exercised  reasonable  care  in  selecting  its  em- 
ployees." ^^"  "Some  cases,  however,  hold  that  a  private 
charitable  institution  is  not  liable  for  the  negligence  of  its 
servants  in  any  event,  as  the  funds  of  a  charitable  trust  can 
not  be  thus  diverted  from  the  purposes  of  a  donor."  ^^^ 

The  question  of  the  personal  liability  of  a  superior  officer 
of  an  eleemosynary  institution  maintained  by  the  state  for 
the  tort  of  his  subordinate  seems  to  be  passed  on  for  the  first 
time,  in  a  recent  Kentucky  case  ^^^  holding  that  the  super- 
intendent of  a  state  lunatic  asylum  is  not,  under  the  doc- 
trine of  respondeat  superior,  responsible  for  injuries  in- 
flicted upon  inmates  of  the  asylum  by  employees  whom  he 
appointed. 

Sec.  150.     Public  Exhibitions. 

A  street  railway  company  was  held  liable  for  an  injury 
received  by  a  spectator  at  an  exhibition  of  markmanship 
given  at  a  pleasure  resort  owned  and  advertised  by  it,  al- 
though the  performance  was  provided  and  conducted  by 
an  independent  contractor.  ^^^    The  Court  of  Queen's  Bench 


'*°  Note  to  Bruce  v.  Central  M. 
E.  Church,  supra,  in  11  Amer.  & 
Eng.  Ann.  Cas.  160,  citing  Illinois, 
etc.,  Railroad  v.  Buchanan  (1907), 
103  S.  W.  272;  31  Ky.  L.  R.  722; 
Noble  V.  Hahneman  Hospital 
(1906),  112  N.  Y.  App.  Div.  663; 
98  N.  Y.  Supp.  605.  "See,  also, 
Louisville  University  v.  Ham- 
mock (1907,  Ky.),  106  S.  W.  219; 
Gitzenhoffcn  v.  Sisters,  etc..  Asso- 
ciation (1907),  32  Utah,  46;  88 
Pac.  691." 

'^  Bruce  v.  Centr.vl  M.  E. 
Church,  supra,  citing  in  same 
note  Forclyce  v.  Woman's,  etc.. 
Association    (1906),  79  Ark.   559; 


96  S.  W.  155;  Adams  v.  Univer- 
sity Hospital  (1907),  122  Mo. 
675;  99  S.  W.  453;  Ahston  v. 
Waldon  Academy  (1907),  118 
Tenn.  24;  102  S.  W.  351;  contra, 
Hewett  V.  Woman's,  etc.,  Associa- 
tion (1906),  73  N.  H.  556;  64 
Atl.  190,  holding,  under  statute, 
a  hospital  liable  for  its  manager's 
negligent  injury  to  its  servant. 

"'"Ketterer  v.  Kentucky  State 
Board,  etc.  (1909,  Ky.),  115  S. 
W.  200;  20  L.  R.  A.  (N.  S.),  274. 

"*  Thompson  v.  Lowell  Street 
R.  (1898),  170  Mass.  577;  49  N. 
E.  913;  40  L.  R.  A.  345;  64  Amer. 
St.  Rep.  323.     Where  portions  of 


employer's  exceptional  liability.  267 

has  ruled  that  when  a  man  causes  a  building  to  be  erected 
for  viewing  a  public  exhibition  and  admits  persons  on  pay- 
ment of  money,  the  contract  between  him  and  the  persons 
admitted  is  analogous  to  the  contract  between  a  carrier  and 
his  passengers,  that  there  is  implied  in  such  a  contract  a 
warranty  not  only  of  due  care  on  the  part  of  himself  and 
his  servants,  but  also  of  due  care  on  the  part  of  any  inde- 
pendent contractor  who  may  have  been  employed  by  him 
to  construct  the  means  of  conveyance  or  support.  The 
plaintiff,  who  had  paid  admission,  it  was  held,  could  recover 
against  the  defendant  for  damages  sustained  by  reason  of 
the  stand  having  been  negligently  and  improperly  con- 
structed, although  not  to  the  knowledge  of  defendant  who, 
personally,  was  free  from  all  negligence  and  had  employed 
a  competent  person  to  erect  the  stand.  ^^^  On  the  other 
hand,  a  street  railway  company,  owning  a  park,  was  recently 
held  not  liable  to  a  visitor  for  injuries  due  to  negligence  in 
shooting  off  rockets,  where  all  the  work  in  connection  with 
sending  off  the  fireworks  was  done  by  another  person  under 
a  contract  with  the  street  railway  company  to  give  the  ex- 
hibition, and  the  street  railway  com.pany  had  no  control 
over  the  details  of  the  work  nor  over  the  men  who  per- 
formed it.^^^ 

Sec.  151.     "Profit"  Corporations. 

It  has  been  said  that  the  immunity  wdiich  in  certain  cases 
is  enjoyed  by  municipal  corporations  in  respect  of  liability 
for   the   negligence   of   independent    contractors   of   public 

a  platform  and   staircase  used  at  Buffalo  Park  (1897),  21  App.  Div. 

a  public  exhibition  gave  way  and  321 ;  47  N.  Y.  Supp.  788. 

injured  plaintiff,  he  was  held  en-  ***  Francis    v.    Cockrell     (1870), 

titled    to    recover    though    it    ap-  L.    R.,    5    Q.    B.    184.    affirmed,   p. 

peared    they   were   erected   by   an  501. 

independent    contractor.      Fox    v.  ^^  Dej'o    v.     Kingston,    etc.,    R. 

(1904),  88  N.  Y.  Supp.  487. 


268       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY 

work,  is  not  enjoyed  by  corporations  for  profit,  such  as 
turnpike  companies.  But  it  is  questionable  whether  there 
is  any  such  distinction.^^" 


"°  Lancaster  Avenue,  etc.,  Co. 
V.  Rhoads  (1887),  116  Peiin.  St. 
377;  9  Atl.  852;  2  Amer.  St.  Rep. 
608.  "But  when  certain  powers 
and  privileges  have  been  .specifi- 
cally conferred  by  the  public  upon 
an  individual  or  corporation,  for 
private  emolument,  in  considera- 
tion of  which  certain  duties  af- 
fecting public  health  or  the  safety 
of  the  public  travel  have  been  ex- 
pressly assumed,  the  individual  in 


receipt  of  the  emoluments  cannot 
be  relieved  of  liability  by  com- 
mitting the  performance  of  these 
duties  to  another.  In  such  cases 
liability  cannot  be  evaded  by 
showing  that  the  injury  resulted 
from  the  fault  or  neglect  of  a 
third  person  employed  to  perform 
these  public  duties."  Clark,  J.,  in 
Lancaster,  etc.,  Co.  v.  Rhoads, 
supra,  quoted  in  Barrows  on  Neg., 
165. 


CHAPTER    VI. 

Employer's  Exceptional  Liability — III.  Conduct  of 

Employer. 


SECTION 

SFX'J 

160. 

Liability  under  express  con- 
tract. 

169. 

161. 

Same — Effect   of  statute. 

170. 

162. 

Same — Duty  to  contract. 

171. 

163. 

Contract  for  defective  plans. 

172. 

164. 

Selecting  contractor,   gener- 

ally. 

173. 

165. 

Same — Degree  of  care. 

174. 

166. 

Same — Incompetency  known. 

175. 

167. 

Identity     of     employer     and 

contractor. 

176. 

168. 

Employer    wrongfully   inter- 

fering. 

177. 

Same — What  amounts  to  in- 
terference. 

Employer  reserving  control. 

Same — Partly  doing  work. 

Same — Permitting  use  of 
defective  appliances. 

Employer  accepting  work. 

Same — What    is    acceptance. 

Same — Knowledge  of  condi- 
tion. 

Same — Work  abandoned  by 
contractor. 

Contractor  generally  ex- 
empt. 


Sec.  160.    Liability  Under  Express  Contract. 

The  principle  of  exemption  can  not  be  appealed  to  to 
enable  one  to  violate  express  contracts  into  which  he  has 
entered.  One  who  enters  into  a  valid  contract  to  do  a  cer- 
tain thing  must  do  it  or  pay  damages  for  its  breach ;  and  he 
can  not  ordinarily  excuse  himself  from  paying  damages  by 
pleading  inevitable  accident,  vis  major,  or  the  like.  In 
general,  nothing  but  the  wrong  of  the  opposite  contracting 
party  can  be  invoked  to  excuse  non-performance.^  An  in- 
corporated company  undertook  to  lay  water  pipes  in  a  city, 
agreeing  with  the  city  "to  protect  all  persons  against  dam- 

'Gray  v.  Pullen   (1864),  5  Best.  &  S.  985;  7  Am.  Neg.  R.  158,  n. 

269 


270       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITi'. 

ages  by  reason  of  excavations  made  by  them  in  laying  pipes, 
and  to  be  responsible  for  all  damages  which  might  occur 
by  reason  of  the  neglect  of  their  employees  in  the  premises." 
The  company  let  out  the  work  to  a  contractor.  The  latter 
used  a  steam  drill  in  such  manner  as  to  frighten  a  traveler's 
horse  and  injure  the  traveler.  An  action  by  the  traveler 
against  the  company  was  supported  upon  the  plain  ground 
that  they  could  not  evade  a  liability  which  they  assumed 
by  contract,  by  shifting  over  to  another  the  work  which  they 
had  undertaken  to  perform.^  The  employer  may  bargain 
with  the  contractor  that  he  shall  perform  a  non-delegable 
duty  and  stipulate  for  an  indemnity  from  himself  if  it  is 
not  properly  performed ;  but  the  employer  can  not  thereby 
relieve  himself  from  liability  to  those  injured  by  the  con- 
tractor's failure  to  perform  it.'^  A  contract  providing  that 
said  "contractor  should  maintain  the  sidewalks  along  said 
street  during  the  construction  of  said  improvement  safe  for 

*  Water  Co.  v.  Ware  (1872),  16  negligent  manner  in  which  a  con- 
Wall.  (U.  S.).  566.  '"If  the  em-  tractor  conducts  the  work  where 
ployer  by  express  contract  has  the  city  contracts  with  the  owner 
agreed  to  do  an  act  efficiently  and  of  the  property  for  a  right  of  way 
safely,  he  cannot,  by  sub-letting  and  agrees  to  pay  all  damages 
the  work  to  an  independent  con-  occasioned  by  the  construction, 
tractor,  relieve  himself  from  lia-  Leeds  v.  Richmond  (1885),  102 
bility  under  his  express  contract.  Ind.  372;  1  N.  E.  71. 
Thus,  where  a  company  under-  *  Dalton  v.  Angus  (1881),  L. 
took  to  lay  water  pipes  in  a  city,  R.,  6  App.  C.  740,  829;  7  Am. 
and  agreed  with  the  city  to  pro-  Neg.  R.  157,  n. ;  Hughes  v.  Per- 
tect  all  persons  from  damages  cival  (1883),  L.  R.,  8  App.  C. 
and  to  be  responsible  for  dam-  443.  Contra,  Osborn  v.  Union, 
ages  to  all  persons,  and  after-  etc.  (1869),  53  Barb.  (N.  Y.),  629, 
wards  sub-let  the  work  to  a  con-  holding  such  stipulation  relieves 
tractor,  who,  in  using  a  steam  the  employer,  relying  on  Buffalo 
drill  injured  a  passenger,  it  was  v.  Holloway  (1852),  7  N.  Y. 
held  that  the  company  was  liable."  493 ;  57  Amer.  Dec.  550,  and 
Huff.  Agcy.,  2d  ed..  Sec.  223,  Storrs  v.  Utica  (1858),  17  N.  Y. 
citing  Water  Co.  v.  Ware,  supra.  104;  72  Amer.  Dec.  437.  But  this 
But  the  city  will  be  liable  to  the  is  criticised.  See  note  to  Jacobs 
owner  of  property  injured  by  the  v.  Fuller  (1902),  65  L.  R.  A.  841. 


employer's  exceptional  llvbility. 


271 


travel  by  the  general  public  and  that  he  should  properly 
guard  all  places  of  danger  along  said  street  during  the  con- 
struction of  said  improvement,"  does  not  absolve  the  city 
from  injuries  resulting  directly  from  the  acts  the  contractor 
agreed  and  was  authorized  to  do,  and  from  work  of  such 
character  as  to  render  the  sidewalk  unsafe  for  public  travel.^ 
"Under  a  contract  between  a  city  and  a  water  company, 
by  which  the  latter  agrees  to  supply  the  city  with  water 
sufficient  for  fire  purposes,  an  individual  citizen  whose  prop- 
erty has  been  destroyed  by  fire,  through  the  alleged  neglect 
of  the  water  company  in  complying  with  the  terms  of  the 
contract,  has  no  right  of  action  against  the  company  as  there 
is  no  privity  of  contract  between  them."  ^  In  a  Michigan 
case  it  is  said  that  an  employer  ought  not  to  be  held  re- 
sponsible on  the  ground  that  the  injury  was  the  natural 
and  probable  result  of  his  contract,  where  the  contract  itself 
expressly  provides  that  the  stipulated  work  shall  be  care- 
fully done,  and  the  injury  complained  of  would  not  have 
occurred  had  that  provision  been  observed.^ 

Sec.  161.    Same,  Effect  of  Statute. 

In  California  it  is  held  that  a  statutory  provision  requir- 
ing a  municipality  to  let  contracts  regarding  its  streets, 
etc.,  to  the  lowest  bidder  is  such  compulsion  as  to  absolve 


*  Anderson  v.  Fleming  (1903), 
160  Ind.  597;  67  N.  E.  443;  66 
L.  R.  A.  119;  16  Am.  Neg.  R. 
606,  n.  If  in  a  case  wherein  a 
railroad  company  has  been  com- 
pelled to  pay  a  property  owner 
for  materials  appropriated  by  its 
independent  contractor,  the  con- 
tractor has  agreed  with  the  com- 
pany to  furnish  the  materials  at 
his    own    expense,    the    company 


may  have  an  action  over  against 
him  for  what  it  has  thus  been 
compelled  to  pay  for  them. 
Thomps.  Neg.,  p.  615,  note  132. 

'  Note  to  Earl  v.  Lubbock 
(1905),  1  K.  B.  253,  in  1  Amer. 
&  Eng.   Ann.   Cas.   755. 

'Samuelson  v.  Cleveland,  etc., 
Co.  (18^2).  49  Mich.  164;  13  N. 
W.  499;  43  Amer.  Rep.  465. 


272       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABIIITV. 

the  city  from  liability  for  the  acts  of  the  contractor.'  So 
also,  under  the  Georgia  Code,  sec.  671,  a  bond  taken  by 
a  county  from  a  contractor  erecting  a  bridge  for  the  county, 
to  keep  it  in  repair,  exempts  the  county  from  liability  for 
damages,  during  the  period  covered,  for  injuries  in  conse- 
quence of  its  defective  condition.^  But  a  Pennsylvania 
statute  directing  that  the  township  supervisor  shall  award 
a  contract  for  making  and  repairing  a  road  therein  to  the 
lowest  and  best  bidder,  was  held  not  to  exempt  the  township 
from  liability  for  defects  in  the  road  due  to  the  contractor's 
acts  or  acts  or  omissions." 

Sec.  162.     Same,  Duty  to  Contract. 

In  a  California  case,  the  plaintiff  contended  it  was  the 
defendant's  duty  to  expressly  stipulate  with  his  independent 
contractor  that  the  work  should  be  so  conducted  and  com- 
pleted as  to  leave  undisturbed  the  soil  on  plaintiffs  adjoin- 
ing lot,  and  that  failing  so  to  provide,  defendant  was  liable, 
the  work  having  been  done  according  to  contract.  The 
court  held:  "When  a  contract  provides  for  doing  a  thing 
which  may  be,  and  generally  is,  done  in  a  lawful  manner 
and  is  silent  as  to  the  mode  of  doing  it,  the  contract  is  to 
be  construed  as  requiring  it  to  be  done  in  a  lawful  manner. 
As  the  injury  was  caused  by  the  contractor  while  doing 
work  which  it  must  be  assumed,  could  have  been  done  with- 

'  James     v.     San     Francisco  bond    docs    not    make   the   county 

(1856),  6  Cal.  528;  65  Amer.  Dec.  liable.      Dougherty    Co.    v.    New- 

526.  unlighted  excavation;  O'Hale  som  (1899),  107  Ga.  811;  33  S.  E. 

V.  Sacramerto  (1874),  48  Cal.  212,  660. 

same  facts ;  Krause  V.  Sacramento  "  Mahanoy   Township  v.    Sholly 

(1874),     48     Cal.     222,     defective  (1877),   84    Penn.    135.      Cf.,    De- 

sidewalk.  tkoit    v.    Corey    (1861).    9    Mich. 

''Alappin     v.     Washington     Co.  165;  80  Amer.  Dec.  7S,  Campbell, 

(1893),    92    Ga.    130;     17    S.    E.  J.,   dissenting. 
1009.      But    failure    to    take    such 


employer's  exceptional  ll\.bility. 


273 


out  causing-  it,  and  the  contractor  had  agreed  to  do  it,  the 
injury  was  done  in  violation  of  his  contract."  Judgment 
was  rendered  fur  defendant. ^^^ 


Sec.  163.     Contract  for  Defective  Plans. 

"The  owner  can  not  dictate  that  his  building  be  con- 
structed of  improper  materials  or  upon  an  unsafe  plan,  and 
escape  liability  for  injuries  occasioned  thereby,  because  he 
made  a  contract  with  a  third  person  to  build  it ;  nor  can  he, 
with  knowledge  of  a  w-eakness  or  defect  threatening  the 
strength  of  the  building,  set  a  man  at  work  immediately 
under  it,  and  shift  all  responsibility  upon  the  builder."  ^^ 
Where  the  negligence,  in  erecting  a  wall  abutting  against 
a  party  wall  which,  by  reason  of  insufficient  support,  fell 
on  plaintiff's  building,  was  not  in  the  workmanship  or  ma- 
terials used  by  contractors,  but  in  the  plans  and  specifica- 
tions, the  owners  of  the  building  are  liable.^-  And  where 
a  defectively  planned  bridge  fell  on  workmen  while  it  was 
in  the  course  of  being  constructed  by  an  independent  con- 


'» Aston  V.  Nolan  (18S3).  63 
Cal.  269. 

"Meier  v.  Morgan  (1892),  82 
Wise.  289;  52  N.  W.  174;  33 
Amer.  St.  Rep.  39,  per  Winslow, 
J.;  Whitney  v.  Clifford  (1879), 
46  Wise.  138;  32  Amer.  Rep.  703; 
Trainor  v.  Philadelphia,  etc.,  R. 
(1890),  137  Penn.  St.  148;  20 
Atl.  632. 

'-  Lancaster  v.  Connecticut 
ETC.,  Insurance  Co.  (1887),  92 
Mo.  460;  5  S.  W.  23;  1  Amer.  St. 
Rep.  739.  A  person  who  eon- 
tractcd  with  another  for  the 
building  of  a  house  on  his  own 
land  was  held  liable  for  the  con- 


sequences of  the  erection  of  a 
wall  of  insufficient  strength  where 
he  reserved  the  right  to  alter  or 
modify  the  plans  and  specifica- 
tions, and  to  make  an\'  deviation 
in  the  construction,  detail,  or 
execution  of  the  contract,  with- 
out in  either  case  invalidating  the 
contract.  McMillan  v.  Walker 
(188n,  21  X.  B.  31.  Cf.,  Horner 
V.  Nicholson  (1874),  56  Mo.  220. 
For  other  cases  of  liability  where 
the  work  was  done  according  to 
the  employer's  methods,  see  those 
cited  in  note  to  65  L.  R.  A.,  pp. 
755-757. 


274       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABIL3TV- 

tractor  the  employer,  the  county,  was  held  liable.^^  An 
independent  contractor  is  liable,  in  exoneration  of  the  em- 
ployer, only  for  defects  in  the  doing  of  the  work  and  not  for 
defects  in  the  designing  of  such  work.^"*  But  it  is  said 
that  the  owner  can  not  be  held  liable  for  pefsonal  injuries 
resulting  from  the  failure  of  an  independent  contractor  to 
conform  to  the  plans  and  specifications  because  the  owner 
failed  to  employ  an  architect  to  supervise  the  work  of  the 
contractor  as  contemplated  by  the  contract.  ^^ 


Sec.  164.     Selecting  Contractor,  Generally. 

It  has  been  held  that  an  employer  is  liable,  not  only  where 
he  knowingly  employs  an  incompetent  person  to  do  public 
work  but  also  in  failing  to  exercise  due  and  reasonable  care 
to  select  such  as  are  skillful  and  competent. ^^  "The  master 
may  be  responsible  for  the  negligent  conduct  of  an  inde- 
pendent contractor  if  he  has  failed  to  use  reasonable  care 
in  selecting  him."  The  same  authority  says  further:  "It 
is  c|uite  evident  that  an  employer  may  be  guilty  of  negli- 
gence in  intrusting  the  work  to  an  unskillful  or  incompetent 
person  and  in  such  event  he  is  liable  for  resulting  injury."^'^ 


"Cloud  Co.  V.  Vickers  (1900), 
62  Kans.  25;  61  Pac.  391.  Cf., 
Tyler  v.  Tehama  Co.  (1895),  109 
C'al.  618;  42  Pac.  240,  where  a 
bridge  abutment  was  so  built  as 
to  divert  water  from  the  river 
on  to  lands  of  plaintiff. 

"  Church,  etc.,  v.  Paterson, 
ETC.,  R.  (1902),  68  N.  J.  L.  399; 
53  Atl.  449,  in  which  the  retain- 
ing wall  on  a  railway  failed  to 
furnish  adequate  support  to  land 
abutting  on  the  railway.  See, 
also,  Atlanta,  etc,  R.  v.  Kim- 
BERLEY  (1891),  87  Ga.  161;  13  S. 


E.  277;  27  Amer.  St.  Rep.  231; 
67  L.  R.  A.  701. 

"Hawke  v.  Brown  (1898),  50 
N.  Y.   Supp.  1032. 

"  Norwalk.  etc.,  Co.  v.  Nor- 
walk  (1893),  63  Conn.  495,  529; 
28  Atl.  32;  Brannock  v.  Elmore 
(1892),  114  Mo.  55;  21  S.  W.  451. 

"  Barrows  on  Nd.,  162,  citing 
Berg  V.  Parsons  (1896),  84  Hun, 
60;  31  N.  Y.  Supp.  1091  (the 
author  does  not  note  reversal  of 
this  case)  ;  Norwalk,  etc.,  Co.  v. 
Norwalk,  supra.  "See,  also,"  Ar- 
desco  v.  Gilson   (1S70),  63  Penn. 


employer's  exceptional  liability. 


275 


In  a  leading-  case  it  is  said:  "Although  the  relation  of 
master  and  servant  does  not  exist  between  a  hospital  and 
the  physicians  and  surgeons  engaged  by  it,  the  hospital  im- 
pliedly undertakes  to  exercise  reasonable  care  in  selecting 
persons  who  are  skillful  and  trustworthy  in  their  profes- 
sion; and  if  a  patient  receives  injury  through  its  neglect  to 
exercise  such  care,  such  patient  is  entitled  to  recover  of  the 
hospital,  unless  it  enjoys  some  extraordinary  exemption 
from  liability."  ^^  It  has  been  strongly  intimated  in  a 
recent  New  York  case  that,  if  a  person  is  not  competent 
to  plan  or  carry  out  a  piece  of  work,  and  yet  attempts  to 


St.  146;  Sturges  v.  Society 
(18S1),  130  Mass.  414;  39  Amer. 
Rep.  463;  Brannock  v.  Elmore, 
supra;  Cuff  v.  Railroad  Co. 
(1870),  35  N.  J.  L.  17;  10  Amer. 
Rep.  201 ;  16  Am.  Neg.  Cas.  668, 
n. ;  Connors  v.  Hennessey  (1873), 
112  Mass.  96.  "There  are  occa- 
sional dicta  to  the  effect  that  if 
one  did  not  use  reasonable  care 
to  select  a  competent  contractor 
he  may  be  liable  for  such  con- 
tractor's negligence  (Lawrence  v. 
Shipman,  1893,  39  Conn.  586); 
and  perhaps  one  or  two  cases  in- 
volving to  some  extent  an  af- 
firmation of  the  doctrine."  Huff. 
Agcy.,  Sec.  219.  It  is  sometimes 
stated  that  a  person  may  be  liable 
for  the  negligence  of  an  inde- 
pendent contractor  if  he  did  not 
use  reasonable  care  to  select  one 
competent  to  perform  the  work 
contracted  for.  Huff.  Agcy.,  2d 
ed..  Sec.  219,  citing  Berg  v.  Par- 
sons (1896),  90  Flun  (N.  Y.). 
267,  overruled  (1S98),  in  156  N. 
Y.  109;  50  N.  E.  957;  41  L.  R.  A. 
391;    66   Amer.    St.    Rep.    542;    4 


Am.  Neg.  R.  432,  three  judges 
dissenting;  Norwalk,  etc.,  Co.  v. 
NoRWALK  (1893),  63  Conn.  495, 
528;  28  Atl.  321;  Brannock  v. 
Elmore  (1892),  114  Mo.  55;  21 
S.    W.    451 ;    Sebeck    v.     Platt- 

DEUTSCHE,  ETC.,  VerEIN    (1900),  64 

N.  J.  L.  624;  46  Atl.  631;  50  L. 
R.  A.  199;  81  Amer.  St.  Rep.  512. 
^  Gl.win  v.  Rhode  Island  Hos- 
pital (1879),  12  R.  I.  411,  424; 
34  Amer.  Rep.  675.  See,  general- 
ly. Sec.  149,  ante.  In  the  opinion 
of  one  learned  writer,  the  deci- 
sions "furnish  a  sufificient  body 
of  authorities  to  warrant  the  con- 
clusion that  an  employer  may  be 
held  liable  on  the  ground  of  neg- 
ligence in  selecting  a  contractor 
who  does  not  possess  that  meas- 
ure of  skill  and  experience  which 
the  stipulated  work  demands. 
That  no  objection  can  be  mide 
on  the  score  of  principle  to  such 
a  doctrine  seems  to  be  indisput- 
able." C.  B.  Labatt,  in  note  to 
Louisville,  etc.,  R.  v.  Low 
(1901,  Ky.),  in  66  L.  R.  A.  944, 
citing  and  discussing  many  cases. 


276       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


do  one  of  these  thing-s,  he  should  be  held  responsible  for 
an  injury  resulting-  from  his  having  undertaken  the  charge 
of  the  work ;  and  that  it  is  his  duty  to  devolve  the  planning 
and  execution  of  the  work  upon  persons  possessing  sufficient 
knowledge  and  skill  to  accomplish  what  is  contemplated 
without  endangering  the  workmen  and  the  public.^® 

In  Minnesota  it  has  been  distinctly  held  that  an  employer 
can  be  held  liable  because  he  engaged  an  independent  con- 
tractor, only  in  those  cases  where  the  work  itself  is  intrinsi- 
cally dangerous.2"  q^l-,e  doctrine  of  independent  contractor 
makes  it  the  duty  of  the  proprietor  to  exercise  reasonable 
care  in  the  selection  of  the  contractor  engaged  to  perform 
services  for  him  and  where  this  care  has  been  exercised  he 
will  not  be  liable  for  negligence  of  the  contractor,  that  he, 
the  proprietor,  could  not  have  anticipated  by  ordinary 
care.^^  Thus,  one  who  has  employed  a  competent  architect 
to  erect  a  dam  is  not  responsible  for  injuries  caused  by  its 
bursting  while  the  work  is  in  progress.^^ 

There  are  some  cases  squarely  denying  the  doctrine  of 
one's  liability  for  the  negligence  of  an  independent  con- 
tractor even  though  the  employer  did  not  use  reasonable 
care  in  selecting  one  competent  to  perform  the  work  con- 
tracted for.-^^     It  is  urged  that  the  exception  to  the  general 


"Burke  v.  Ireland  (1901),  166 
N.  Y.  305;  59  N.  E.  914. 

^  Schipp  V.  Pabst  Brewing  Co. 
(1896),  64  Minn.  22;  66  N.  W. 
3,  the  court  refusing  to  follow  the 
dicta  in  Deford  v.  State  (186S), 
30  Md.  204,  and  Lawrence  v. 
Shipman     (1873),    39    Conn.    589. 

^  White  V.  Green  (1904,  Tex.), 
82  S.  W.  329. 

^^'^BoswELL  V.  Laird  (1857),  8 
Cal.  469;  68  Amer.  Dec.  345. 
"Where  a  contractor  takes  entire 
control  of  a  work,  the  employer 
having  no  right  of  supervision  or 


interference,  the  employer,  if  he 
is  not  negligent  in  his  selection, 
is  not  liable  to  third  parties  for 
his  contractor's  want  of  care  in 
the  performance  of  it."  L.\n- 
CASTER  Ave.,  etc.,  Co.  v.  R  ho  ads 
(1887),  116  Penn.  377;  9  Atl.  852; 
2  Amer.  St.  Rep.  608.  As  to  ef- 
fect of  employing  incompetent 
contractor,  see,  further,  Schnurr 
V.  Huntington  County  (1899).  22 
Ind.  App.  188;  53  N.  E.  425. 

^Berg  v.  Parsons  (1898),  156 
N.  Y.  109;  50  N.  E.  957;  41  L. 
R.  A.  391 ;  66  Amer.  St.  Rep.  542 ; 


employer's  exceptional  ll\bility,  277 

rule,  if  once  admitted,  would  run  counter  to  business  cus- 
toms under  which  a  contractor  may  estimate  and  contract 
for  work  and  afterwards  sublet  it  to  others  who  are  spe- 
cialists, would  go  far  toward  destroying  the  whole  doctrine 
applicable  to  independent  contractors  and  would  "open  a 
new  and  unlimited  field  for  actions  for  negligence."  2"* 

Sec.  165.     Same,  Degree  of  Care. 

"Difficulty  arises,  however,  in  determining  what  degree 
of  care  in  the  selection  is  sufficient  to  exonerate  the  employer 
from  the  charge  of  negligence  and  the  cases  afford  no  satis- 
factory rule.  It  would  seem  that  each  case  must  be  decided 
upon  its  own  circumstances,  the  character  of  the  work,  and 
the  corresponding  degree  of  skill  required  in  its  accom- 
plishment, the  probable  attendant  dangers,  and  the  general 
reputation  of  the  contractor  for  skill  and  efficiency."  ^^  It 
is  said  by  another  author  that  the  only  duty  resting  upon 
one  who  supplies  a  physician,  if  the  latter  is,  in  the  given 
case,  an  independent  contractor,  is  to  use  proper  care  in 
selecting  him.^"     The  competency  of  the  contractor  is,  as  a 

4  Am.  Neg.  R.  432;  47  Cent.  L.  employing  careless  persons,  Lord 
J.  237;  Schipp  v.  Pabst  Brewing  Mackenzie  said:  "It  is  perfectly 
Co.  (1896),  64  Minn.  22;  66  N  vain  to  say  that  any  such  blame 
W.  3.  can  attach  to  a  man  who  employs 
^  Huflf.  Agcy.,  2d  ed..  Sec.  219,  responsible  tradesmen  to  execute 
citing  Berg  v.  Parsons,  supra,  and  harmless  repairs  on  his  house  (in 
Schipp  V.  Pabst  Brewing  Co.,  this  case  plastering),  or  in  those 
supra.  It  is  urged,  on  the  other  persons  contracting  with  another 
hand,  that  the  exception  imposes  to  do  part  of  the  work." 
on  one  having  work  performed  M'Lean  v.  Russell  (1850).  12  Sc. 
only  a  duty  which  he  fairly  owes  Sess.  Cas.,  2d  series,  887. 
to  the  public  or  to  adjoining  ^  Barrows  on  Neg.,  p.  162.  The 
owners;  dissenting  opinion  in  author  refers  to  the  section  on 
Berg  v.  Parsons,  supra.  Regard-  "Negligence  of  Master  in  Select- 
ing the  contention  of  plaintiff  ing  Competent  Co-employees." 
that  there  was,  in  the  case  before  ^  Burdick  on  Torts,  p.  135. 
the  court,  a  constructive  culpa  in  "The  principle  is  well  settled  that 


278       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY 


general  rule,  admissible  as  tending  to  show  the  employer's 
freedom  from  negligence,  but  it  will  not  per  sc  exonerate 
the  employer.^'  If  a  railroad  company  exercises  reasonable 
diligence  in  the  selection  of  surgeons,  nurses,  etc.,  who  are 
of  good  repute  in  their  profession,  it  is  not  answerable  on 
the  footing  of  negligence  for  the  result  of  the  treatment 
which  the  professional  persons  so  employed  by  them  may 
bestow  on  the  employee.^® 

Where  plaintiff  sued  a  landowner  for  injuries  resulting 
from  blasting  done  by  an  independent  contractor  it  was 
held,  that  in  order  to  recover,  the  plaintiff  should  have 
shown,  inter  alia,  that  the  independent  contractor  was  a 
negligent  and  careless  man,  within  the  knowledge  or  means 


a  private  charitable  institution 
which  has  exercised  due  care  in 
the  selection  of  its  employees  can 
not  be  held  liable  for  injuries  re- 
sulting from  their  negligence." 
Note  to  Parks  v.  Northwestern 
University  (1905,  Ills.),  in  4 
Amer.  &  Eng.  Ann.  Cas.,  p.  104, 
citing  numerous  cases. 

^Toledo,  etc.,  R.  v.  Beggs 
(1877),  85  Ills.  80;  28  Amer.  Rtp. 
613;  Illinois,  etc.,  R.  v.  Phillips 
(1868),  49  Ills.  234.  Compare, 
Losee  v.  Buchanan  (1873),  51 
N.  Y.  476;  10  Amer.  Rep.  623; 
Chase's  Cas.  Torts,  Supp.  15; 
Columbus,  etc.,  R.  v.  Arnold 
(1869),  31  Ind.  177.  "If  all  the 
other  facts  alleged  in  McPadden's 
second  defense  were  found  to  be 
true  it  would  manifestly  be  im- 
material to  the  sufficiency  thereof 
whether  the  jury  were  satisfied 
that  McPadden  used  due  and 
proper  care  in  selecting  H.,  whom 
they  find  to  have  been,  in  fact,  a 
competent  person,  to  perform  the 


work  he  undertook  to  perform 
as  an  independent  contractor." 
Wilmot  v.  McPadden  (1906),  79 
Conn.  367;  65  Atl.  157;  19  L.  R. 
A.   (N.  S.),  1101,  citing  cases. 

^  Pittsburgh,  etc.,  R.  v.  Sul- 
livan (1895),  141  Ind.  83;  40  N. 
E.  138;  50  Amer.  St.  Rep.  313; 
27  L.  R.  A.  840;  Quinn  v.  Rail- 
road (1895),  94  Tenn.  713;  45 
Amer.  St.  Rep.  767;  30  S.  W. 
1036;  28  L.  R.  A.  552.  A  steam- 
ship company  engaging  a  reason- 
ably competent  and  skillful  sur- 
geon, although  upon  the  payment 
of  a  salary,  to  attend  upon  its 
passengers  during  its  voyages, 
whether  in  pursuance  of  a  statute 
or  not,  and  providing  such  sur- 
geon with  reasonable  medical 
stores  and  surgical  appliances,  is 
not  answerable  for  such  sur- 
geon's malpractice.  Laubheim  v. 
Royal,  etc.,  Steamship  Co. 
(1887).  107  N.  Y.  228;  13  N.  E. 
781 ;   1  Amer.   St.  Rep.  815. 


employer's  exceptional  liability. 


279 


of  knowledge  of  the  defendant.^^  In  the  lower  court,  in 
a  leading  New  York  case,  it  was  stated  that  the  employer's 
inquiry  must  be  with  reference  to  the  contractor's  ability 
to  perform  the  service  for  which  he  is  employed;  hence, 
one  employing  a  contractor  to  do  blasting  for  a  cellar  was 
held  not  to  have  performed  this  duty  by  making  inquiry  of 
a  law  clerk  who  claimed  to  have  seen  a  piece  of  blasting 
done  by  the  contractor  and  said  it  was  reasonably  well  done, 
but  did  not  inquire  as  to  his  ability  to  do  this  particular 
kind  of  blasting.^'^ 

Sec.  166.     Same,  Incompetency  Known. 

There  are  many  dicta  to  the  effect  that  the  employer  is 
under  a  legal  duty  to  exercise  due  care  in  selecting  a  con- 
tractor and  that  he  will  be  answerable  for  the  contractor's 
torts  if  the  latter  is  known  to  him  to  be  unfit  or  incompetent 
for  the  proper  execution  of  the  work  in  hand  or  if  his 
manner  of  doing  the  work  is  known  to  the  employer  to 


*Hunt  V.  McNamee  (1905), 
72  C.  C.  A.  441;  141  Fed.  293. 
In  a  New  York  case  it  was  held 
that  the  plaintiff  was  improperly 
non-suited,  since  the  defendant 
had  not  exonerated  himself  from 
liability,  by  showing  that  he  em- 
ployed a  skilled  and  competent 
architect,  and  that  he  could  right- 
fully rely  upon  him  both  for  the 
preparation  of  plans  and  the  su- 
perintendence and  inspection  of 
the  work  and  that  he  did  not  in- 
terfere with  the  architect  in  the 
discharge  of  the  duties  the  latter 
assumed  to  perform  for  the 
owner.  The  architect  could  not 
be  said  to  be  skilled  in  the  busi- 


ness, because  the  defendant  con- 
sidered him  such  or  the  architect 
represented  himself  to  be  such,  as 
by  signing  the  plans.  Nor  was  it 
enough  for  the  defendant  to  say 
that  he  relied  upon  the  approval 
of  the  plans  by  the  building  de- 
partment, as  a  certificate  of  ca- 
pacity or  competency  of  the 
architect  he  employed.  Fox  v. 
Ireland  (1900),  46  App.  Div.  541; 
61   N.  Y.  Supp.   1061. 

»"Berg  v.  P.vrsons  (1896),  &4 
Ilun  (N.  Y.),  60;  31  N.  Y.  Supp. 
1091 ;  reversed  on  other  grounds 
(1898),  156  N.  Y.  109;  50  N.  E. 
957 ;  41  L.  R.  A.  391 ;  66  Amer.  St. 
Rep.  542;  4  Am.  Neg.  R.  432. 


280       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


be  negligent.^^  One  case  has  expressly  approved  the  doc- 
trine that  an  employer  is  liable  for  the  torts  of  a  contractor 
whom  he  employs  knowing  him  to  be  unfit  or  incompetent 
for  the  work  or  knowing  that  his  manner  of  doing  the  work 
is  negligent.^^  But  the  fact  that  a  building  contractor  was 
negligent  in  respect  of  the  work  docs  not  create  a  presump- 
tion that  the  owners  of  the  property  were  guilty  of  negli- 
gence in  having  employed  him  so  as  to  render  them  liable 
to  a  third  person  for  an  injury  caused  by  his  negligence. ^^ 
One  case  apparently  expressly  rejects  the  doctrine  that  an 
employer  of  an  incompetent  independent  contractor  is  liable 
for  the  latter's  torts,  if  he  knew  his  unfitness,  incompetency 
or  habitual  negligence. ^^ 


Sec.  167.     Identity  of  Employer  and  Contractor. 

The  obvious  principle  that  the  proprietor  will  continue 
liable  for  his  own  negligence  in  any  event  covers  the  case 
where  there  is  a  substantial  identity  between  the  contractor 
and  his  employer,  c.  g.,  where  the  work  of  a  corporation 


'^  Burd.  Torts,  p.  144,  citing 
Dillon  V.  Hunt  (1884),  82  Mo. 
155;  Brannock  v.  Elmore  (1892), 
114  Mo.  55;  21  S.  W.  451,  and 
cases  cited  therein,  in  which  case 
it  was  held  that  the  employer 
is  liable  if  he  contracts  with  one 
to  do  blasting  whom  he  knows  to 
be  in  the  habit  of  blasting  in  vio- 
lation of  an  ordinance. 

*"  Norwalk  Gaslight  Co.  v.  Nor- 
walk  (1893),  63  Conn.  495;  28 
Atl.  32,  cited  in  Burd.  Torts, 
p.  144. 

*'Hawke  v.  Brown  (1898),  28 
App.  Div.  (N.  Y.).  37;  50  N. 
Y.    Supp.    1032. 

='Berg  v.  Parsons  (1898),  156 
N.  Y.   109;   50  N.   E.  957;  41   L. 


R.  A.  391;  66  Amer.  St.  Rep. 
542;  47  Cent.  Law  J.  237;  Burd. 
Cas.  Torts,  406,  n. ;  4  Amer.  Neg. 
R.  432,  reversing  (1895),  84  Hun, 
60;  51  N.  Y.  Supp.  1091,  where 
it  was  expressly  held  that  the 
employer  is  bound  to  select  a 
suitable  and  competent  contractor 
for  blasting.  In  another  New 
York  case  it  was  ruled  in  the 
trial  court  that  evidence  that  the 
contractor  was  notoriously  incom- 
petent was  inadmissible,  without 
proof  that  the  defendant's  con- 
tracting agents  knew  of  such 
incompetency.  The  case  was  re- 
versed on  appeal.  Kelly  v.  New 
York  (1854),  4  E.  D.  Smith,  291; 
11    N.   Y.  432. 


employer's  exceptional  LL\.B1L1TY. 


281 


is  performed  by  an   operating-  company,   whose  personnel 
is  substantially  identical  with  that  of  the  corporation  itself.""*^ 

Sec.  168.     Employer  Wrongfully  Interfering. 

The  proprietor  may  make  himself  liable  by  interfering 
with  the  contractor  and  assuming  control  of  the  w^ork, 
or  some  part  of  it,  so  that  the  relation  of  master  and  servant 
arises,  or  so  that  an  injury  ensues  which  is  traceable  to  his 
interference.^'^     Thus,  if  the  proprietor  interferes  with  the 


^'Jas.  McNeil,  etc.,  Co.  v.  Cru- 
cible, etc.,  Co.  (1904),  207  Penn. 
St.  493;  56  Atl.  1067.  See  ante. 
Sees.  30,  76,  124. 

*>  Gilbert  v.  Beach  (1855).  16 
N.  Y.  423;  Hefferman  v.  Ben- 
hard  (1863),  1  Robt.  (N.  Y.), 
432;  Jones  v.  Chantry  (1874),  4 
N.  Y.  Sup.  Ct..  T.  &  C.  63 ;  Butts 
V.  Mackey  Co.  (1893),  72  Hun, 
562;  25  N.  Y.  Supp.  531;  (1895), 
147  N.  Y.  715;  42  N.  E.  722; 
Nevins  v.  Peoria  (1866).  41  Ills. 
502;  89  Am.  Dec.  392;  Cooper  v. 
Seattle  (1897),  16  Wash.  462;  47 
Fac.  887;  58  Amer.  St.  Rep.  46; 
Harding  v.  Boston  (1895),  163 
Mass.  14;  39  N.  E.  411;  Lar- 
son V.  Metropolitan  Street  R. 
(18921,  110  Mass.  234;  16  L.  R. 
A.  330;  33  Amer.  St.  Rep.  439; 
NoRWALK  Gas  Co.  v.  Norwalk 
(1893),  63  Conn.  495;  28  Atl. 
321;  Crenshaw  v.  Ullman  (1893), 
113  Mo.  633;  20  So.  1077;  Birb 
V.  Norfolk,  etc.,  R.  (1891).  67 
Va.  711;  14  S.  E.  167;  47  Amer. 
&  Eng.  R.  Cas.  651;  Welsh  v. 
Parrish  (1892),  148  Penn.  St. 
599;  24  Atl.  85;  Casement  v. 
Brown  (1893).  148  U.  S.  615;  37 


Law  Ed.  582;  Smith  v.  Milwau- 
kee, ETC.,  Exchange  (1895),  91 
Wise.  360 ;  64  N.  W.  1041 ;  30  L. 
R.  A.  504;  51  Amer.  St.  Rep. 
912:  Weber  v.  Buffalo,  etc.,  R. 
(1897),  20  App.  Div.  292;  47  N. 
Y.  Supp.  7;  Kelly  v.  New  York 
(1854),  11  N.  Y.  432;  Fitzpatrick 
V.  Chicago,  etc.,  R.  (1888),  31 
Ills.  App.  649;  Burmeister  v.  New 
York,  etc.,  R.  (1831),  47  N.  Y. 
Super.  Ct.  264.  Contra,  Harper 
V.  Mikwaukee  (1872),  30  Wise. 
365.  Cf..  Blake  v.  Ferris  (1851), 
5  N.  Y.  48;  55  Amer.  Dec.  304. 
If  the  employer  interferes  with 
the  performance  of  the  work  or 
assumes  to  assist  therein,  he  may 
thereby  incur  liability.  Burgess 
V.  Gray  (1845),  1  Man.  G.  &  S. 
578;  Fisher  v.  Rankin  (1894),  78 
Hun,  407;  29  N.  Y.  Supp.  143; 
Norwalk  Gaslight  Co.  v.  Nor- 
walk (1893).  63  Conn.  495;  28 
Atl.  32;  Woodman  v.  Metropoli- 
tan, etc..  R.  (1889),  149  Mass. 
335;  21  N.  E.  482;  4  L.  R.  A. 
213:  14  Amer.  St.  Rop.  427;  6 
Rail.  &  Corp.  Law  J.  72;  12  Am. 
Neg.  Cas.  80;  King  v.  Railroad 
Co.    (1876),    66    N.    Y.    181;    23 


282       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILiV Y. 

work  of  the  contractor  and  directs  a  particular  thing  to  be 
done,  from  which  injury  results,  obviously  he  will  be  liable, 
for  it  is  his  own  personal  act.^"  "If  an  owner  modifies,  in 
any  respect,  his  contract  with  those  contracting  to  erect  a 
building,  so  that  in  doing  any  particular  act  they  are  obeying 
the  directions  of  the  owner,  if  that  act  is  negligent  and 
damage  ensues,  the  owner  is  liable.  In  such  a  case  it  is 
his  duty  to  see  that  what  is  done  under  his  special  orders 
is  not  negligently  done."  ^* 

Sec.  189.     Same,  What  Amounts  to  Interference, 

Even  if  the  contract  did  so  show  {%.  e.,  that  the  employee 
was  an  independent  contractor)  still  if  the  proof  in  the  case 
showed,  as  a  matter  of  fact,  that  the  appellant  was  con- 
trolling in  whole  or  in  part  the  work  and  blasting  which 


Amer.  Rep.  37;  Eaton  v.  Railroad 
Co.  (1871),  59  Me.  520,  532;  8 
Amer.  Rep.  430;  Cl.-vrk  v.  Fry 
(1858),  8  Ohio  St.  358;  72  Amer. 
Dec.  590;  Robinson  v.  Webb 
(1875),  11  Bush  (Ky.),  464; 
Hughes  V.  Railway  Co.  (1883), 
39  Ohio  St.,  461 ;  15  Am.  &  Eng. 
R.  Cas.  100.  See,  also,  Chicago, 
etc.,  Co.  V.  Myers  (1897),  168 
Ills.  139;  48  N.  E.  66.  But  see, 
Weber  v.  Railroad  Co.,  supra; 
Burke  v.  Ireland  (1901),  26  App. 
Div.  487;  50  N.  Y.  Supp.  369; 
Bohrer  v.  Harness  Co.  (1898),  19 
Ind.  App.  489;  45  N.  E.  66S;  49 
N.  E.  296.  See  ante,  Sees.  18,  19, 
52,  65. 

"•Jones  V.  Chantry  (1874),  4 
N.  Y.  Super.  Ct..  T.  &  C.  63; 
Davie  v.  Levy  (1887),  39  La. 
Ann.  551  ;  2  So.  395;  4  Amer.  St. 
Rep.    225;     Reynolds    v.    Braith- 


waite  (1889),  131  Penn.  St.  416; 
18  Atl.  110;  Meier  v.  Morgan 
(1892),  82  Wise.  289;  52  N.  W. 
174;  33  Amer.  St.  Rep.  39. 

^  Bosworth,  J.,  in  Hefifernan  v. 
BerJiard  (1863),  1  Robt.  (N.  Y.), 
436.  If  the  employer,  having  re- 
served no  right  to  interfere,  does 
in  fact  interfere,  and  the  injury 
complained  of  is  the  natural  re- 
sult of  such  interference,  the 
employer  is  liable.  Huflf.  Agcy., 
2d  ed..  Sec.  226,  citing  Lawrence 
V.  Shipman  (1873),  39  Conn. 
586,  590;  Berg  v.  Parsons  (1898), 
156  N.  Y.  109;  50  N.  E.  957;  41 
L.  R.  A.  391;  66  Amer.  St.  542; 
47  Cent.  Law  J.  237;  Burd.  Cas. 
Torts,  406,  n. ;  Atlanta,  etc.. 
Railroad  v.  Kimberley  (1893),  87 
Ga.  161.  168;  13  S.  E.  277;  27 
Amer.   St.  Rep.  231. 


employer's  exceptioNxVL  liability. 


283 


resulted  in  tlie  injuries  complained  of,  it  would  be  responsi- 
ble therefor  if  the  negligence  was  such  as  to  render  it  in 
any  manner  responsible.^"  The  mere  fact  that  the  agent 
of  a  proprietor,  when  asked  by  an  employee  of  the  contrac- 
tor what  he  should  do,  told  him  to  go  to  a  certain  portion 
of  the  premises  and  engage  in  a  certain  line  of  work,  and 
the  employee  was  injured  in  such  work,  has  been  held  not 
to  show  a  masterful  direction  by  the  proprietor  to  the  em- 
ployee to  work  at  a  place  which  the  proprietor  was  legally 
bound  to  provide  as  safe.-**^  A  mere  request  by  the  pro- 
prietor that  the  contractor  hasten  the  w^ork  wall  not  be  re- 
garded as  an  interference  wdth  the  work  under  the  rule.^^ 

Sec.  170.     Employer  Reserving  Control. 

In  a  leading  work,"*-  it  is  said:  "One  court  has  gone 
so  far  as  to  hold  that  where  a  proprietor  contracts  for  the 
erection  of  a  building  and  by  the  terms  of  the  contract  retains 
control  by  an  architect,  under  whose  direction  the  contractor 
agrees  to  do  the  work,  and  also  retains  the  power  to  change 
the  plan  of  the  work,  he  will  be  answerable  for  the  negli- 
gence of  the  contractor.-*^     This,  however,  is  not  the  sound 


"*  Louisville,  etc.,  Railroad  y. 
Low  (1901),  23  Ky.  L.  R.  408; 
63  S.  W.  27;  66  L.  R.  A.  941;  21 
Am.  &  Eng.  R.  Cas.  (N.  S.),  441, 
in  which  the  question  was  held 
properly  submitted  to  the  jury. 

"Glaser  v.  Michelson  (1904), 
86  N.  Y.  Supp.  286.  Under  the 
New  York  statute,  which  im- 
poses the  duty  of  furnishing  or 
erecting  safe  and  suitable  scaf- 
foldings upon  a  person  directing 
another  to  perform  labor  in  alter- 
ing a  building,  it  was  held  that  a 
proprietor  employing  an  indepen- 
dent contractor  to  instal  machin- 


ery and  furnishing  workmen  to 
assist  was  not  made  liable  for 
injuries  caused  by  an  insufficient 
scaffold  by  the  mere  fact  that  one 
of  his  foreman  in  the  course  of 
the  work  directed  the  workmen 
of  the  independent  contractor  to 
erect  the  scaffold.  Wingert  v. 
Krakauer  (1904),  87  N.  Y.  Supp. 
261. 

"Eldred  v.  Mackle  (1901),  178 
Mass.   1;  59  N.  E.  673. 

''-Thompson  on  Neg.,  Sec.  662. 

''Citing  Schwartz  v.  Giimore 
(1867).  45  Ills.  455;  92  Am.  Dec. 
227. 


284       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITb^ 

view  of  the  usual  building  contract.  The  contractor  stipu- 
lates to  deliver  to  the  proprietor  certain  results.  He  is 
responsible  to  the  proprietor  for  these  only.  The  proprietor 
does  not  retain  control  over  the  contractor  as  to  his  methods 
of  proceeding-  with  the  work.  He  could  not  do  so ;  for  the 
contractor  is  generally  skilled  in  the  business,  and  he  is 
not.  No  contractor  could  safely  stipulate  to  do  a  job  at 
a  fixed  price  and  then  allow  the  proprietor  to  control  him 
in  matters  of  method  and  detail,  for  this  might  destroy  his 
power  so  to  order  the  work  as  to  make  his  contract  a  profit- 
able one.  The  proprietor  usually  retains  control  by  a  skilled 
architect,  not  for  the  purpose  of  controlling  the  contractor 
in  his  methods,  but  for  the  purpose  of  assuring  himself  that 
the  results  enumerated  in  the  specifications  of  the  contract 
are  reached  by  the  contractor  step  by  step,  as  the  work 
progresses.  There  is  no  sound  view  under  which  such  a 
contract  can  be  construed  as  creating  the  relation  of  master 
and  servant  between  the  proprietor  and  contractor,  and  the 
conclusion  of  the  Illinois  court  can  not  be  upheld  and  the 
great  weight  of  authority  is  to  the  contrary."  '^^  Where 
the  employer  is  exercising,  over  the  premises  on  which  the 
stipulated  work  is  done,  a  right  of  control  which  is  co- 
ordinate and  concurrent  with  that  vested  in  the  contractor, 
the  owner  may  be  liable,  for  under  such  circumstances  the 
nature  and  extent  of  the  employer's  responsibility  is  de- 
termined by  the  principle  that  a  person  "must  not  suffer  a 
nuisance  to  continue  on  his  premises  to  the  injury  of  others, 
although  he  is  not  responsible  for  its  creation."  ^^ 

""This    question    is    well    gone  '' Vogel  v.    New   York    (1883), 

over  in  Rol)inson  v.  Webb  (1875),  92  N.  Y.  19;  44  Amer.  Rep.  349. 

11  Bush   (Ky.),  464,  with  a  resu'.t  In    one    case    (reserving   control) 

the    reverse  of  that    in    Schwartz  the   employer    is    still   the    master 

V.   Gilmore,  supra.     To  the   same  and   liable  as   such   for  the  negli- 

efifect     are"     many     cases     cited.  gence    of    his    servants;     in    the 

Thomps.  Neg.,  Sec.  662,  n.  63.  other    case    (interference)     he    is 


employer's  exceptional  ll^bility. 


285 


Sec.  171.     Same,  Partly  Doing  Work. 

The  proprietor  himself  may  become  liable  for  an  injury 
happening  through  his  personal  negligence  in  performing 
some  particular  part  of  the  work.  If  he  performs  some  part 
of  the  work  and  another  part  is  let  out  to  a  contractor,  then 
the  rule  applies  that,  when  several  persons  are  engaged  in 
the  same  work,  in  which  the  negligence  or  unskillful  per- 
formance of  his  part  by  one  causes  danger  to  others,  in 
which  each  must  necessarily  depend  for  his  safety  upon  the 
good  faith,  skill  and  prudence  of  each  other  in  doing  his 
part  of  the  work,  it  is  the  duty  of  each,  to  the  others  en- 
gaged in  the  work,  to  exercise  the  care  and  skill  ordinarily 
employed  by  prudent  men  under  similar  circumstances."*" 
The  owner  of  premises  who  assumes  control  of  building 
stones  as  they  are  delivered,  or  directs  the  contractor  where 
to  put  them,  may  be  held  responsible  for  negligence  in  hav- 
ing them  placed  in  an  exposed  position  in  the  street  where 
they  are  liable  to  fall  or  be  thrown  down  and  injure  passersby, 
although  the  contractor  alone  would  have  been  responsible 
except  for  his  interference.^^  The  rule  exempting  contrac- 
tors from  liability  for  the  negligence  of  a  subcontractor 
or  of  his  servant,  is  without  application  where  the  original 


himself  the  actor  and  liable  for 
the  natural  and  probable  results 
of  his  own  acts.  Huff.  Agcy.,  2d 
ed.  Sec.  226. 

"Griffiths  V.  Wolfram  (1875), 
22  Minn.  185;  16  Am.  Neg.  Cas. 
219,  n. 

*'Mahar  v.  Steur  (1898),  170 
Mass.  454;  49  N.  E.  741.  As  in 
other  cases,  the  negligence  may 
consist  in  the  direct  intervention 
or  acts,  or  omissions  of  the  rail- 
road company  itself,  or  of  its 
own  servants.     Thus,   it  has  been 


held  that  where  a  contractor  lays 
a  railroad  track  under  an  agree- 
ment that  those  in  charge  of  the 
construction  train  shall  be  em- 
ployed and  paid  by  tlic  company 
and  not  by  himself,  and  that  he 
shall  have  no  control  of  the  train, 
in  any  manner,  the  company  is 
liable  for  injuries  to  a  person  em- 
ployed by  him  resulting  from 
negligence  of  tliose  in  charge  of 
the  train.  Chicago,  etc.,  R.  v. 
Clark  (1889),  26  Nebr.  645;  42  xN. 
W.  703. 


286       INDEPENDENT    CONTRACTORS    AND    THEIR    LTAliTLITY. 

contractor  and  his  subcontractor  have  joint  supervision 
over  the  work,  and  co-operation  between  them  is  necessary 
to  its  completion.  Under  these  circumstances,  they  are 
jointly  liable  to  persons  injured  by  reason  of  their  negli- 
gence.^^ It  has  been  held  that  the  fact  that,  under  the  con- 
tract, the  work  is  to  be  done  under  the  supervision  of  the 
railroad  company's  chief  engineer  does  not  take  the  case 
out  of  the  rule  of  exemption,  since  this  supervision  is  re- 
served merely  for  the  purpose  of  securing  direct  results  and 
not  for  the  purpose  of  controlling  the  contractor  in  his 
methods  of  procedure.'*^ 

Sec.  172.     Same,  Permitting  Use  of  Defective  Appliances. 

It  has  been  said  in  several  Kentucky  cases  that  the  em- 
ployer of  an  independent  contractor  consenting  to  the  use 
of  a  defective  appliance  belonging  to  him  by  the  servants 
of  the  contractor  is  not  liable  for  injuries  caused  thereby 
where  he  is  under  no  obligation  to  furnish  the  appliance. ^*^ 

Sec.  173.    Employer  Accepting  Work. 

If  the  proprietor  employs  a  contractor  to  do  work,  not  in 
its  nature  a  nuisance,  but  which  when  completed  is  so  by 
reason  of  the  manner  in  which  the  contractor  has  done  it 
and  he  accepts  the  work  in  this  condition,  he  becomes  at 
once  responsible  for  the  existence  of  the  nuisance,  upon  a 
principle  very  similar  to  that  which  makes  a  principal  re- 
sponsible for  the  unauthorized  wTongs  committed  by  his 

**  Baumeister   v.    Markham  untenable.     Thomps.  Neg.,  672,  n. 

(1897),    101    Ky.    122;    39   S.    W.  133. 

844;  41  S.  W.  816;  2  Amer.  Neg.  '^^  Bush  v.  Grant   (1901),  22  Ky. 

Rep.  363;  72  Amer.  St.  Rep.  397.  L.  R.  1766;  61   S.  W.  363;  Cen- 

'"McKinley  v.  Chicago,  etc.,  R.  tral,  etc.,  Co.  v.  Grider    (1903), 

(1890),  40  Mo.   App.   449,   which  115   Ky.  745;   74  S.  W.   1053;  65 

decision  Judge  Thompson  declares  L.    R.    A.   455;    16   Am.    Neg.    R. 

610,  n. 


employer's  exceptional  llvbility. 


287 


agent,  by  ratifying  them.^*  In  Pennsylvania  it  is  held  that 
if  the  employer,  at  the  time  he  resumes  possession  of  the 
work,  from  an  independent  contractor,  knew  or  ought  to 
have  known,  or  from  a  careful  examination  could  have 
known,  that  there  was  any  defect  in  the  work,  he  is  re- 
sponsible for  any  injury  caused  to  a  third  person  by  de- 
fective construction. '^-  If  independent  contractors  make 
a  defective  railroad  crossing  over  a  public  highway  and 
the  railroad  company  accepts  the  work,  and  in  consequence 
of  the  defect  a  third  person  is  killed,  the  railroad  company 
must  pay  damages. ^^ 

Sec.  174.     Same,  What  is  Acceptance. 

Whether  the  work  has  been  accepted  in  such  sense  as  to 
render  the  employer  responsible  thenceforward  for  the  con- 


"BoswELL  V.  Laird  (1857),  8 
Cal.  49.  per  Field.  J.,  68  Amer. 
Dec.  345 :  Beberich  v.  Ebach 
(1890).  1.31  Tcnn.  St.  165;  18  Atl. 
1008;  Khron  v.  Brock  (18S7),  144 
Mass.  516;  11  N.  E.  748. 

**  First  Presbyteri.^n  Congre- 
gation V.  Smith  (1894),  163 
Penn.  St.  561;  30  Atl.  279;  43 
Amer.  St.  Rep.  808;  26  L.  R.  A. 
504;  39  Cent.  Law  J.  452.  Ci., 
Beberich  v.  Ebach.  supra,  in 
which  it  was  stated  that  if  the 
general  contractor  for  the  erec- 
tion of  a  building  accepts  a  por- 
tion of  the  work  from  subcon- 
tractor, with  a  knowledge  of  its 
condition,  and  the  work  thus  ac- 
cepted is  so  defective  that  it 
afterwards  causes  the  building, 
while  still  in  course  of  erection, 
to  fall  upon  an  adjoining  prop- 
erty,   the    general   contractor   will 


be  liable  for  the  damages,  since 
an  original  proprietor  would  be 
liable  under  like  circumstances. 
After  the  contractor  has  com- 
pleted the  work  and  turned  i  t 
over  to  the  proprietor,  and  the 
proprietor  has  accepted  it  in  dis- 
charge of  the  contract,  then,  if 
by  reason  of  the  negligent  man- 
ner in  which  the  work  has  been 
done,  a  third  person  suffers  in- 
jury, the  liability,  if  any.  will  rest 
upon  the  proprietor  and  not  upon 
the  contractor.  Curtin  v.  Somer- 
set (1891),  140  Penn.  .St.  70;  21 
Atl.  244;  12  L.  R.  A.  322;  23 
Amer.  St.  Rep.  220;  Fitzmaurice 
V.  Fabian  (1892).  147  Penn.  St. 
199;  23  Atl.  444. 

^  Taylor,  etc..  R.  v.  Warner 
(1895)',  88  Tex.  642;  31  S.  W. 
66;  32  S.  W.  868. 


288       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILLTY. 


dition  of  the  subject-matter  is  to  be  determined  from  the 
circumstances  in  evidence;  thus,  where  the  general  contrac- 
tor, for  the  construction  of  a  building,  has  sublet  the  work 
of  building  the  walls,  the  fact  that  he  used  the  walls  for 
the  purpose  of  doing  the  wood-work  upon  the  building  and 
paid  the  subcontractor  for  the  material  furnished  and  for 
work  done  by  him,  is  strong  evidence  to  sliow  that  he  ac- 
cepted the  walls  as  a  performance  of  the  subcontract  and 
that  the  character  of  both  work  and  materials  was  satis- 
factory to  and  sanctioned  by  him.^^  Acts  from  which  the 
assumption  of  a  practical  control  over  the  subject  matter 
of  the  contract,  in  its  completed  state  is  inferable,  will 
render  the  employer  chargeable  with  the  same  measure  of 
responsibility  as  a  formal  acceptance  of  the  results ;  and  on 
this  ground  one  who  had  filled  and  used  a  stand-pipe  for 
supplying  water  to  his  customers  was  held  liable  for  the 
flooding  of  the  premises  of  an  adjoining  owner  on  the 
collapse  of  the  stand-pipe,  although  the  contractor  was,  at 
the  time,  trying  to  remedy  a  defect  therein  so  as  to  make 
it  acceptable  to  the  employer.^^ 


"Bast  V.  Leonard  (1870),  15 
Minn.  304.  Where  a  laborer  was 
injured  by  the  derailment  of  a 
construction  train  resulting  from 
defects  in  the  track  and  in  rolling 
stock,  the  railroad  company  was 
held  not  liable.  The  decision 
turned  largely  on  the  question 
whether  the  particular  section  of 
the  road  on  which  the  accident 
occurred  had  been  turned  over  to 
the  company  so  as  to  bring  the 
construction  train  under  its  con- 
trol. St.  Louis,  etc.,  R.  v.  WilHs 
(1888),  38  Kans.  330;  16  Pac.  728; 
33  Am.  &  Eng.  R.  Cas.  397. 

"Read  v.  East  Providence 
ETC.,    District    (1898),    20    R.    L 


574;  40  Atl.  760;  4  Amer.  Neg. 
Rep.  589.  When  the  acceptance 
and  use  of  a  building  will  con- 
stitute the  acceptance  of  the  work 
in  its  construction  or  repair  is  a 
question  frequently  arising.  Au- 
thorities on  it  are  considered  in 
a  note  to  the  recent  Maryland 
case  of  Pope  v.  King  (1903,  Md.), 
69  Atl.  417;  16  L.  R.  A.  (N.  S.), 
489,  in  which  case  a  contract  for 
repairs  provided  that  payments 
should  be  made  on  a  certificate 
from  the  architect,  and  it  was 
held  that  use  of  the  building  did 
not  make  the  owner  liable  to 
make  the  payments  except  when 
the  stipulated  certificate  was  pre- 


employer's  exceptional   LL^BILITY. 


289 


Sec.  175.     Same,   Knowledge   of  Condition. 

"In  several  cases  in  which  the  rule  (holding  the  em- 
ployer liable  after  acceptance)  has  been  applied,  it  has  been 
expressly  declared  or  assumed  by  the  courts  that  the  impu- 
tation of  liability  is  conditional  upon  the  production  of 
evidence  which  shows  that  the  employer  had  either  actual 
or  constructive  knowledge  of  the  dangerous  conditions 
which  caused  the  injury."  ^'^ 

Sec.  176.     Same,  Work  Abandoned  by  Contractor. 

If  after  an  independent  contractor  to  whom  the  construc- 
tion or  repair  of  its  roadbed  has  been  committed  by  a  rail- 
road company,  abandons  the  contract  to  the  company,  the 
company  completes  the  work,  the  company  is  clearly  liable 
for  such  work.''^  To  a  note  to  a  recent  case  it  is  said  that 
"it  is  clear  that  the  immunity"  by  a  general  rule  "conceded 
is  predicable  only  in  respect  to  those  cases  in  which  the  in- 
jury was  received  while  the  stipulated  work  was  in  progress. 
As  soon  as  the  control  of  the  subject  matter  of  the  contract  has 


sented.  To  somewhat  broader 
effect  are  many  of  the  cases  cited, 
showing  that  in  general  mere  oc- 
cupancy and  use  will  not  amount 
to  an  acceptance  of  the  work  of 
building  or  repairing  the  structure, 
nor  amount  to  waiver  of  defects 
therein,  although  the  circum- 
stances may  be  sufficient  in  a  par- 
ticular case  to  show  that  the 
owner  accepts  the  work. 

"  Note  to  Choctaw,  etc.,  R.  v. 
WiLKER  (1906).  16  Okla.  384;  84 
Pac.  1086 :  46  Am.  &  Eng.  R.  Cas. 
759,  in  3  L.  R.  A.  (N.  S.),  601, 
citing  First  Presbyterian  Con- 
gregation V.  Smith  (1894),  163 
Penn.  St.  561;  30  Atl.  279;  26  L. 


R.  A.  504;  43  Amcr.  St.  Rep. 
808;  39  Cent.  Law  J.  452  (sewer)  ; 
Beberich  v.  Ebach  (1889),  131 
Penn.  St.  165;  18  Atl.  1003  (stone 
foundation ")  :  Chart'ers,  etc.,  Co. 
V.  T>ynch  (18S8),  118  Pa.  362;  12 
Atl.  435;  BoswELL  v.  Laird 
(1857),  8  Cal.  469;  68  Amer.  Dec. 
345;  Fanjoy  v.  Scales  (1865),  29 
Cal.  243 ;  Neuman  v.  Greenleaf, 
etc.,  Co.  (1898),  73  Mo.  App.  326. 
Contra,  as  to  notice  to  city  of 
defect  in  highway,  the  charter 
providing  for  notice  in  some  cases, 
see  Houston  v.  Isaacs  (1387),  68 
Tex.   116:  3  S.  W.  693. 

°'  Savannah,   etc..  R.  v.   Phill'ps 
(1892),  90  Ga.  829;  17  S.  E.  82. 


290       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


been  transferred  to  the  employer,  as  a  result  either  of  the  com- 
pletion or  stoppage  of  the  work,  he  incurs  the  responsibilities 
which  the  law  attaches  to  the  exercise  of  the  control ;  and  the 
mere  fact  that  the  dangerous  conditions  which  caused  the  in- 
jury were  originally  created  by  the  negligence  or  other  torti- 
ous act  of  a  contractor  will  not  afford  him  any  protection  if  he 
permits  them  to  continue  after  it  is  in  his  power  to  remedy 
them.^'^  Upon  this  ground  the  employer  is  held  liable  in 
the  two  following  classes  of  cases:  (1)  Where  the  danger- 
ous conditions  resulted  from  the  execution  of  a  contract 
which  was  essentially  one  for  the  construction  or  formation 
of  a  thing  which  had  previously  no  existence;  ^^  (2)  Where 
the  dangerous  condition  arose  from  the  performance  of  a 
contract  which  provided  for  repairing,  or  otherwise  altering, 
a  thing  which  had  previously  existed  and  had  constituted 
a  part  of  the  employer's  property."  "•* 


"'  Citing  VoGEL  V.  New  York 
(1883),  92  N.  Y.  10;  44  Amer. 
Rep.  349. 

°'' Citing  cases  under  (a)  post, 
note  60. 

^''  Note  to  Choctaw,  etc.,  R.  v. 
WiLKER  (1906),  16  Okla.  384;  84 
Pac.  1086;  46  Am.  &  Eng.  R.  Cas. 
759,  in  1  L.  R.  A.  (N.  S.),  596, 
citing  (a)  Cleghorn  v.  Taylor 
(1856).  18  Sc.  Sess.  C,  2d  series, 
664;  Mclntyre  v.  Gallach  (1883), 
11  Sc.  Sess.  C,  4th  series,  64; 
Philadelphia,  etc.,  R.  v.  Philadel- 
phia, etc.,  Co.  (1859),  23  How. 
(U.  S.),  209;  GoRHAM  v.  Gross 
(1878),  125  Mass.  232;  28  Amer. 
Rep.  234;  Mulchey  v.  Methodist, 
etc.,  Society  (1878),  125  Mass. 
487;  15  Am.  Neg.  Cas.  661,  n. ; 
Khron  v.  Brock  (1887),  144  Mass. 
516;  11  N.  E.  748;  Cork  v.  Blos- 
som   (1894),    162    Mass.    330;    38 


N.  E.  495;  26  L.  R.  A.  256;  44 
Amer.  St.  Rep.  362;  Sturges  v. 
Theological,  etc.,  Society  (1881), 
130  Mass.  414;  39  Amer.  Rep. 
463 ;  McCamus  v.  Citizens,-  etc., 
Co.  (1863),  40  Barb.  (N.  Y.), 
381 ;  Wilkinson  v.  Detroit,  etc., 
Works  (1889),  7Z  Mich.  405;  41 
N.  W.  490;  Carey  v.  Courcelle 
(1865),  17  La.  Ann.  108,  sub- 
contractor's negligence ;  Skelton 
V.  Larkin  (1894),  82  Hun  (N. 
Y.),  388;  31  N.  Y.  Supp.  234; 
(1895),  146  N.  Y.  365;  41  N.  E. 
90;  Bohrer  v.  Dienhart,  etc.,  Co. 
(1898),  19  Ind.  App.  489;  49  N. 
E.  296;  Moore  v.  Townsend 
(1899),  76  Minn.  64;  78  N.  W. 
880;  Bailey  v.  New  York  (1842), 
3  Hill  (N.  Y.),  532;  38  Amer. 
Dec.  669;  and  citing  {b)  Tarry 
V.  Ashton  (1876),  L.  R.,  1  Q.  B. 
D.   314;   7  Am.   Neg.   R.   157,  n. ; 


employer's  exceptional   LIABiLlTi.  291 

Sec.  177.     Contractor  Generally  Exempt. 

The  general  rule  is  that  after  the  contractor  has  turned 
the  work  over  and  it  has  been  accepted  by  the  proprietor 
the  contractor  incurs  no  further  liability  to  third  persons  by 
reason  of  the  condition  of  the  work;  but  the  responsibility, 
if  any,  for  maintaining-  or  using  it  in  its  defective  condition, 
is  shifted  to  the  proprietor.  Hie  contractor  remains  liable, 
if  at  all,  only  to  the  proprietor  for  a  breach  of  his  contract."^ 

Silverton   v.    Marriott    (1888),  59  tractors    after    the    work    is    com- 

L.    T.    (N.    S.).    61;    Bebcrich  v.  pleted,  turned  over  and  accepted, 

Ebach    (1890),   131   Penn.   165;  18  applies   at   least   if   such    work   is 

Atl.  1008.  not  per  se  imminently  dangerous. 


Ul 


For  note,  see  26  L.  R.  A.  504.       Swan  v.  Jackson   (1889),  55  Hun 
The  general  rule  exempting  con-       (N.  Y.),  194;  7  N.  Y.  Supp.  821. 


CHAPTER    VII. 


Employer's  Liability  to  His  Own  Servants. 


SECTION 

180.  General  rule  as  to  liability 
for  independent  contrac- 
tor's act. 

Whether  person  injured  was 
servant  or  independent 
contractor. 

Negligence  of  contractor. 

Same — Supplying  appliances. 

Same — Supplying  scaffolds. 

Same — Supplying    elevators. 

Same — Supplying  derricks. 

Same — Supplying  railroad 
bridges. 

Employer's  duty   to   inspect. 

Assuring  safety  of  place. 

Defect   known   to   employer. 


181. 


182. 
183. 
184. 
185. 
186. 
187. 

188. 
189. 
190. 


SECTION 

191.  Question  for  jury. 

192.  Relation    between    employer 

and  contractor. 

193.  Same — Master's  duty  to  fur- 

nish contractor  safe  tools, 
etc. 

194.  Same — Discharge    of     fran- 

chise. 

195.  Negligence     of    contractor's 

servants. 

196.  Same — Whether  fellow-serv- 

ants. 

197.  Negligence    of    servants    of 

lessors  and  others. 

198.  Liability    regarding    subcon- 

tractors. 


Sec.  180.     General  Rule   as  to   Liability  for  Independent 
Contractor 's    Acts. 

"It  is  apparent  that  the  rule  that  a  master  is  not  negli- 
gent in  omitting  to  test  apphances  if  he  purchases  them  from 
a  reputable  dealer  or  manufacturer,  virtually  creates  an  ex- 
ception pro  tanto  to  the  operation  of  the  doctrine  of  non- 
delegable duties ;  for  although  the  rationale  of  the  decisions 
is  the  absence  of  negligence,  the  rule  virtually  amounts  to 
an  assertion  that  a  master  may,  to  some  extent,  evade  re- 
sponsibility for  the  non-performance  of  one  of  these  duties 
(supplying  proper  instrumentalities)  by  procuring  them 
from  an  independent  contractor.  Singularly  enough,  this 
292 


employer's  liability  to  nis  own  servants.        293 

aspect  of  the  rule  does  not  seem  to  have  thus  far  attracted 
the  attention  of  the  courts.  As  rej[^ards  the  cases  in  which 
the  master's  Habihty  for  the  default  of  an  independent  con- 
tractor in  discharging  a  non-delegable  duty  is  in  question, 
they  are  so  conflicting  as  to  render  it  impossible  to  formu- 
late any  definite  doctrine  on  the  subject."  ^  The  theory  that 
a  master  is  entitled,  as  a  matter  of  law,  to  rely  on  the  quality 
of  appliances  obtained  from  a  reputable  manufacturer  should 
be  rejected  because  such  theory  is  essentially  inconsistent 
with  the  doctrine  of  the  master's  own  non-delcgable  duties, 
for  as  between  master  and  servant,  this  doctrine  should  al- 
ways be  regarded  as  controlling  whenever  it  comes  in  con- 
flict with  that  which  declares  that  the  employer  of  an 
independent  contractor  is  not  liable  for  his  negligence,  the 
situation  then  being  materially  different  from  that  presented 
when  a  stranger  is  the  injured  party,  inasmuch  as  the  former 
of  those  doctrines  has  no  application  to  such  cases,  except 
where  statutory  duties  are  involved.  Another  reason  for 
rejecting  the  theory  stated,  is  that,  according  to  the  rule 
adopted  by  most  of  the  authorities,  the  injured  servant  has 
ordinarily  no  right  of  action  against  the  manufacturer  and, 
if  he  can  not  recover  from  the  master,  he  can  not  recover 
at  all.  Assuming  the  defect  which  caused  the  injury  to  have 
been  discoverable  by  the  exercise  of  proper  care,  some  one 
ought,  in  fairness,  to  be  held  responsible  for  its  exercise,  and 
it  is  a  mere  mockery  of  justice  to  absolve  the  master  simply 
on  the  ground  that  he  was  justified  in  trusting  to  the  skill 
and  diligence  of  a  person  who,  if  that  skill  and  diligence 
were,  as  a  matter  of  fact,  not  exercised,  is  not  liable  to  the 
servant  because  there  is  no  privity  of  contract  between 
them.-     In  a  number  of  Missouri  cases  it  is  asserted  that 

'Labatt  on  Master  &  S.,  p.  1630,  "Labatt,  Master  &  S..  pp.  327- 

from  whose  most  excellent  discus-  8,    citing    Ci-F-velaxd.    etc.,    R.    v. 

sion    this    chapter    is    largely    de-  Berry    (1899),    152   Ind.    607;    53 

rived.  N.   E.  415;  46  L.   R.  A.  3S,  and 


294       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


a  master  can  not  relieve  himself  of  the  duty  of  exercising 
ordinary  care  to  provide  reasonably  safe  appliances  for  his 
servants,  by  the  employment  of  superintendents  or  inde- 
pendent contractors  to  provide  such  appliances.^  Contrary 
to  what  is  probably  the  general  rule,  it  has  been  held  in  a 
Virginia  case  that  where  it  is  the  custom  of  railroad  compa- 


note.  In  a  Federal  case  the 
master  has  been  held,  unqualified- 
ly, not  relieved  of  a  positive  per- 
sonal duty  by  letting  the  work  to 
a  contractor ;  the  plaintiff  having 
been  injured  by  the  fall  of  a 
heavy  beam  due  to  the  negligence 
of  the  contractor's  servants  in 
leaving  it  loose  while  repairs 
were  being  made.  Toledo,  etc., 
Co.  V.  Bosch  (1900),  41  C.  C.  A. 
482;  101  Fed.  530.  An  employer 
has  been  held  liable  for  defects 
in  a  scaffold  which  had  been  con- 
structed by  a  contractor  for  the 
brick  work  on  a  building,  and 
which  gave  way  under  a  stone 
setter,  and  the  general  principle 
was  laid  down  that  it  does  not 
matter  whether  the  instrumental- 
ity furnished  to  an  employee  was 
constructed  by  the  master  himself 
or  was  olitained  by  gift  or 
through  a  right  arising  from  an 
established  custom.  McBeath  v. 
Rawle  (1901),  93  Ills.  App.  212. 
See,  also,  Sec.  99,  ante. 

'  Herder  v.  Buck,  etc.,  Co. 
(1896).  136  Mo.  3;  37  S.  W.  115; 
Burnes  v.  Kansas  City,  etc.,  R. 
(1895),  129  Mo.  41 ;  31  "s.  W.  347; 
Bartley  v.  Trorlicht  (1892),  49 
Mo.  App.  214,  citing  Northern, 
etc.,  R.  V.  Herbert  (1886).  116 
U.  S.  647;  29  Law  Ed.  758;  6 
Sup.    Ct.   590.     Cf.,   Sackewitz  v. 


American,  etc.,  Co.  (1899),  70 
Mo.  App.  144;  Leslie  v.  Rich 
Hill,  etc.,  Co.  (1892),  110  Mo. 
31;  19  S.  W.  308,  under  statute. 
"For  a  general  review  of  the 
cases  bearing  upon  the  question 
whether  a  master  can,  by  employ- 
ing a  contractor  to  perform  one 
or  more  of  the  duties  which  he 
owes  to  his  servants,  relieve  him- 
self from  liability  for  their  non- 
performance, the  reader  is  referred 
to  Sees.  558  and  559  of  Labatt  on 
Master  and  Servant.  The  deci- 
sions are  conflicting,  but  the 
weight  of  authority  would  seem 
to  be  distinctly  in  favor  of  the 
doctrine  that  a  master  cinnot 
escape  his  responsibility  by  such 
a  delegation  of  his  duties.  This, 
it  is  submitted,  is  the  only  doc- 
trine v/hich  is  logically  tenable, 
and  which  can  be  reconciled  with 
general  principles.  Below  are 
collected  a  few  more  cases  which 
support  that  doctrine,  but  which 
were  overlooked  when  the  above 
mentioned  work  was  being  com- 
piled." Note  by  Mr.  Labatt  to 
Anderson  v.  Fleming  ( 1903, 
Ind.),  66  L.  R.  A.  153,  citing 
inter  alia,  The  Magdaline  (1898), 
91  Fed.  798,  shipmaster  liable  to 
servant  injured  by  negligence  of 
contractor  engaged  in  repairing 
ship. 


employer's  liability  to  his  own  servants.        295 

nies  to  have  certain  work,  not  essentially  hazardous,  done 
by  independent  contractors,  and  ordinary  care  is  used  in  se- 
lecting such  contractors,  the  railroad  companies  can  not  be 
held  responsible  for  injuries  resulting  to  its  employees 
through  the  negligence  of  such  independent  contractors 
since  the  railroad  company  is  not  an  insurer  of  the  safety 
of  its  employees,  but  is  bound  only  to  exercise  ordinary  care 
for  their  safety.'* 

Sec.  181.     Whether  Person  Injured  was  Servant  or  Inde- 
pendent Contractor. 

The  question  whether  the  wrong-doing  or  injured  person 
was  an  independent  contractor  or  a  servant  has  arisen  in 
quite  a  few  cases.  Thus,  a  city  which  held  title  to,  and  right 
of,  possession  of  a  cemetery  within  its  limits,  which  was 
under  the  control  and  management  of  trustees  chosen  by 
the  citizens,  and  removable  for  cause  by  the  city  council, 
was  held  liable  to  an  employee  working  under  the  order  of  a 
superintendent,  who,  with  the  employee,  was  appointed  by 
the  trustees,  subject  to  the  approval  of  the  city  council,  for 
an  injury  caused  by  the  negligence  of  the  superintendent 
and  trustees.^  Minor  children  and  their  father,  who  hires 
them  to  work  in  a  mine  under  a  contract  that  the  children 
shall  cut  coal  at  a  specified  price,  the  father  to  furnish  the 
tools,  powder,  etc.,  and  the  bank  boss  to  have  control  of 
the  work,  are  held  employees  of  the  mine  operator  and  not 
independent  contractors  and  the  mine  operator  is  lial^le  under 
the  Alabama  Employer's  Liability  Act.*'     Where  a  city  was 

*  Norfolk,   etc..   R.  v.    Stevens  *  Toledo    v.    Cone     (1884),    41 

(1899),  97  Va.  631;  34  S.  E.  525;  Ohio     St.     149.      See.     generally, 

46  L.  R.   A.  367,   which   decision  Sees.  31.  110,  ante. 

has  been  criticised  as  being  "con-  '  Drennan  v.  Smith   (1896),  115 

trary  to   sound  principle  and   not  Ala.  396;  22  So.  442. 
worthy    to    be    cited."      Thomps. 
Neg.,  Sec.  3737,  note  49. 


296       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

constructing  a  water-pipe  trench  and  a  laborer,  employed 
under  the  direction  of  the  city's  inspector  and  superinten- 
dent, was  assigned  to  the  excavation  of  a  twelve-foot  section 
of  the  trench,  but  he  had  no  authority  or  discretion  as  to 
his  work,  he  was  not  an  independent  contractor  and  the  city 
was  bound  to  exercise  reasonable  care  to  provide  for  his 
safety  against  the  caving  in  of  the  banks  while  he  was  at 
work."^ 

Sec.  182.     Negligence  of  Contractor. 

Whether  the  employer  is  liable  to  his  own  servants  for 
injury,  growing  out  of  the  negligence  of  the  contractor,  is 
a  much-mooted  question.  Perhaps  no  general  rule  can  be 
laid  down.  A  few  examples  and  authorities  are  given  in 
this  and  the  succeeding  sections.  Thus,  where  a  hogshead 
thrown  from  a  truck  in  charge  of  an  independent  contractor, 
injured  the  plaintiff  who  had  been  sent  with  the  horse,  the  em- 
ployer was  held  not  liable.^  The  position  of  the  South  Caro- 
lina Supreme  Court  is  not  clear,  though  apparently  the  master 
is  not  absolved  from  liability  for  the  contractor's  negligence.^ 

Sec.  183.     Same,  Supplying  Appliances. 

In  New  York  the  doctrine  is  established  that  an  employer 
is  not  liable  to  a  servant  for  the  condition  of  a  structure 
erected  for  the  use  of  the  servant  by  an  independent  con- 
tractor. "While  recognizing  the  antagonism  between  this 
doctrine  and  that  of  the  non-delegable  quality  of  certain 
duties,  the  New  York  Court  of  Appeals  contents  itself  with 
declaring  the  master's  non-liability  and  gives  no  reason  for 

'  Fort  Wayne  V.  Christie  (1901),       Silv.   Ct.   App.    (N.   Y.),   575,   re- 
156  Ind.  172;  59  N.  E.  385.  versingr  37  Hun,  642. 

*Brophy   v.    Bartlett    (1888),    1  "  Conlin    v.    Charleston    (1868), 

15  Rich.  L.  201. 


employer's  liability  to  his  own  servants.        297 

its  opinion."  ^*^     The  same  distinguished  author  states  ex- 
pressly that  "he  has  no  hesitation  in  saying  that  he  con- 
siders the  cases  absolving  the  master  from  responsibility  for 
the  negligence  of  an  independent  contractor  in  this  connec- 
tion (i.  e.,  as  to  safe  appliances  furnished  by  such  contractor) 
have    been    decided    upon    a    false    theory    of  the  circum- 
stances involved.     It  is  a  contradiction  in  terms  to  speak  of 
an  absolute  duty  as  being  susceptible  of  delegation.     If  it 
can  be  delegated  in  any  particular  instance,   it  ceases,  ex 
hypotlicsi,  to  be  absolute.    That  this  is  a  necessary  corollary 
of  the  theory  that  a  duty  is  absolute  has  been  fully  recog- 
nized in  many  English  and  American  cases,  where  the  com- 
plainant was  a  stranger:    (a)    Why   a   different  principle 
should  be  applied  where  the  injury  is  received  by  a  servant 
of  the  party  subject  to  the  duty  is  not  apparent,  and  no  court 
has  yet  furnished  any  reason  for  making  such  a  distinction. 
On  the  other  hand  there  is  a  consideration  which  points  very 
strongly,  if  not  conclusively,  to  the  conclusion  that  the  case 
of  a  servant  is  precisely  the  one  in  which  the  courts  should 
be  most  unwilling  to  allow  the  interposition  of  a  contractor 
to  shield  the  master.      ...      A  manufacturer  who  sup- 
plies a  chattel  to  another  person,  to  be  used  in  his  business, 
is  not  bound  to  indemnify  the  servants  of  the  vendee  for 
injuries  which  they  receive  owing  to  defects  in  the  chattel. 
(b)   Manifestly   the   result   of  applying   concurrently  both 
this  principle  and  also  the  principle  that  the  master  who 
purchases  an  appliance  from  a  manufacturer  is,  as  regards 
his  servants,  entitled  to  rely  upon  its  being  fit  for  the  pur- 
poses contemplated,  unless  there  is  something  to  put  him  on 
inquiry  as  to  its  condition,  is  that  those  servants  are  usually 

'^•Labatt,    Master    &    S..    1632-2,  Wittenberg  v.   Friederich    (1896), 

citing   Devlin   v.    Smith    (18S1),  8  App.  Div.  433;  40  N.  Y.  Supp. 

25    Hun    (N.    Y.),   ,    affirmed  895.      But    see,    VVannamaker    v. 

(1882),  89  N.  Y.  470;   42  Amer.  Rochester  (1892),  17  N.  Y.  Supp, 

Rep.    311.      To    the    same    effect:  321. 


298       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


left  remediless  if  they  are  injured  by  reason  of  some  dan- 
gerous property  of  the  appliance.  .  .  .  Such  a  con- 
clusion is  simply  preposterous  and  disgraceful  to  any  system 
of  jurisprudence,  (c)  .  .  .  Either  the  vendor  should 
no  longer  be  allowed  to  shelter  himself  .  .  .  or  it 
should  be  regarded  as  an  implied  term  in  the  contract  be- 
tween the  master  and  his  servants  that  all  appliances  ob- 
tained from  parties  not  in  his  service  are  free  from  all 
defects  which  can  be  prevented  by  the  exercise  of  that  de- 
gree of  care  and  skill  which  is  required  of  persons  follow- 
ing the  same  line  of  business  as  the  vendor.     The  latter 

would  seem  to  be  the  most  desirable. 
The  master  would   still  have  his  action  over   against  the 
vendor."  ^^ 


"  Labatt,  Master  &  S.,  Sec.  559, 
citing    under    (a)    Hole    v.    Sit- 

TINGBOURNE,      ETC.,      R.       (1861),      6 

Hurd.  &  N.  488;  Tarry  v.  Ash- 
ton  (1876),  L.  R.,  1  Q.  B.  D.  314; 
Curtis  v.  Kiley  (1891),  153 
Mass.  123;  26  N.  E.  421;  Burd. 
Cas.  Torts,  403;  Wilkinson  v. 
Detroit,  etc..  Works  (1889),  73 
Mich.  405;  41  N.  W.  490;  1 
Shearm.  &  Redf.  Neg.,  Sees.  14, 
176;  under  (b)  note  to  46  L.  R. 
A.  38-45,  107-119;  under  (c)  16 
L.  Q.  R.  189;  36  Can.  L.  J.  203. 
The  Pennsylvania  cases  are  in 
conflict  regarding  the  employer's 
Hability  for  the  negligent  con- 
struction of  appliances,  etc.,  by  an 
independent  contractor.  The  ear- 
lier cases  exempt  the  employer, 
while  the  later  cases  say  he  is  not 
relieved  of  liability  simply  by  rea- 
son of  his  having  delegated  that 
duty  to  an  independent  contractor. 
Mr.  Labatt  says  (p.  1634)  :  "The 
more  recent   expressions  of  opin- 


ion appear  to  embody  the  correct 
doctrine."  Ardesco,  etc.,  Co.  v. 
Gilson  (1870),  63  Pa.  146;  Painter 
V.  Pittsburgh  (1863).  46  Pa.  213. 
Contra,  Trainor  v.  Philadelphia, 
etc.,  Co.  (1890),  137  Pa.  148;  20 
Atl.  632;  Ortlip  v.  Philadelphia, 
etc.,  Co.  (1901),  198  Penn,  St. 
586;  48  Atl.  497.  The  rule  that 
a  master  discharges  his  duty  to 
a  servant  by  furnishing  an  appli- 
ance made  by  a  reputable  manu- 
facturer is  held,  in  Massachusetts, 
applicable  only  where  it  appears 
that  the  appliance  was  made  for 
the  use  to  which  it  was  put. 
Slattery  v.  Walker,  etc.,  Co. 
(1901),  179  Mass.  307;  60  N.  E. 
782.  Where  the  owner  of  a 
machine,  not  in  its  nature  dan- 
gerous, turns  it  over  to  another's 
use,  in  apparent  good  order,  he 
is  not  liable  for  injuries  resulting 
at  a  later  date  to  such  other's 
employee,  whether  from  undis- 
covered defects  in  such  machine, 


employer's  liability  to  his  own  servants. 


299 


Sec.  184.     Same,  Supplying  Scaffolds. 

In  an  action  by  a  workman  against  his  employer  for  in- 
juries caused  by  the  falling  of  a  staging  on  which  he  had 
been  sent  to  work  by  his  employer,  where  it  appeared  that 
the  staging  was  insecure  because  constructed  of  poor  ma- 
terial and  that  it  was  built  by  those  who  afterwards  became 
plaintiff's  fellow-servants  but  not  under  defendant's  direct 
supervision,  although  he  superintended  the  work  generally, 
the  defendant  was  held  liable.^-  In  Devlin  v.  Smith  ^^ 
the  lower  court  says:  "The  employer  can  not  escape  the 
responsibility  of  exercising  due  care  by  delegating  that  duty 
to  an  agent  but  he  can  employ  a  competent  and  unexcep- 
tionable contractor  to  construct  tools,  machinery,  etc.,  and 
such  conduct  would  be  the  exercise  of  that  care  which  the 
law  requires.  The  employment  of  a  contractor  is  not  a 
delegation  of  the  employer's  duty.  It  is,  when  properly 
done,  an  exercise  of  the  care  and  a  fulfillment  of  the  duty 
which  the  law  exacts."  On  appeal,  it  was  stated  that  the 
one  constructing  the  scaffold  was  not  defendant's  agent  or 
servant,  "but  an  independent  contractor  for  whose  acts  or 


or  from  its  misuse;  and  the  case 
is  tlie  same,  though  the  one  to 
whom  it  is  turned  over  is  an  in- 
dependent contractor  who  uses  it 
in  executing  a  contract  with  the 
owner.  Robideaux  v.  Herbert 
(1907),  118  La.  1089;  43  So.  887; 
12  L.  R.  A.  (N.  S.),  632  (head- 
note  by  court,  condensed),  citing 
under  case  note  Gagnon  v.  Dana 
(1898),  69  N.  H.  264;  39  Atl.  982; 
41  L.  R.  A.  389;  76  Amer.  St. 
Rep.  170;  Coughlin  v.  Gillison 
(1898),  68  L.  J.  Q.  B.  (N.  S.), 
147;  Bl.'ik.more  v.  Bristol,  etc.,  R. 
(1858),  8  El.  &  Bl.  1035;  McCar- 
thy V.  Young   (1861),  6  Hurl.  & 


N.  329;  cf.,  Erskine  v.  Chino, 
etc.,  Co.   (1895),  71  Fed.  270. 

"Arkerson  v.  Denison  (1875), 
117  Mass.  407.  Where  a  staging 
was  constructed  as  plaintiff's  fel- 
low-servant suggested  to  defend- 
ants to  which  the  defendants 
assented,  it  was  held  to  be  their 
duty  to  furnish  proper  material, 
failing  in  which  they  were  liable 
for  injuries  to  plaintiff  by  a  fall 
of  the  scaffold  due  to  the  de- 
fective material.  Dunleavy  v. 
Sullivan  (1908,  Mass.),  85  N.  E. 
866. 

"(1881),  25  Hun,  206;  (1882). 
89  N.  Y.  470;  42  Amer.  Rep.  311. 


300       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

omissions  defendant  was  not  liable."  ^^  The  only  English 
decision  directly  in  point  seems  to  be  one  wherein  Justice 
Denman,  sitting  alone,  held  that  a  servant  could  not  recover 
where  a  staging,  which  gave  way  under  him,  had  been  put 
up  by  an  independent,  competent  contractor. ^^ 

Sec.  185.     Same,  Supplying  Elevators. 

A  New  Jersey  case  holds  that  a  servant  injured  by  an 
elevator  which  was  in  the  course  of  construction  by  an  inde- 
pendent contractor  on  the  master's  premises  could  not  re- 
cover; "but  here  there  was  no  delegation  of  a  duty  in  the 
proper  sense  of  the  phrase,  and  the  circumstances  were  gov- 
erned by  the  principle  that  the  dangerous  agencies  were, 
for  the  time  being,  quite  out  of  the  control  of  the  plaintiff's 
master."  ^*'  On  the  other  hand,  a  Missouri  case  holds  that 
a  building  owner  is  not  absolved  from  the  exercise  of  ordi- 
nary or  reasonable  care  by  entrusting  the  care  of  an  elevator 
in  such  building  to  an  independent  contractor  through  whose 
negligence  an  injury  happened  to  the  owner's  servant.^"^ 


"  Citing  Blake  v.  Ferris 
(1851),  5  N.  Y.  48;  55  Amer.  Dec. 
304. 

'•^  Kiddle  v.  Lovett  (1885),  L. 
R..  16  Q.  B.  D.  605 ;  34  Wkly.  R. 
518.  But  see,  Wilson  v.  Merry 
(1868),  L.  R.  1  H.  L.  326;  19 
L.  T.  (N.  S.),  530;  Hardaker  v. 
Idle  District,  etc.  (1896),  1  Q.  B. 
335;  Groves  v.  Wimborne  (1893), 
2  Q.  B.  402.  In  Scotland  it  is 
held  that  if  the  defect  in  an  ap- 
pliance (a  scaffold)  could  have 
been  discovered  by  the  exercise 
of  reasonable  care,  a  master  is 
answerable  for  injuries  caused  by 


its  unsafe  condition,  even  though 
the  master,  himself  unskilled,  in- 
trusted the  furnishing  of  the  ap- 
pliance to  an  independent  con- 
tractor. MacDonald  v.  Wyllie 
(1898),  1  Sc.  Sess.  Cas.,  5th  series, 
339.  And  see,  Stephens  v.  Thurso 
Police  Commissioners  (1876),  3 
Sc.  Sess.  Cas.,  4th  series,  542. 

''Conway  v.  Furst  (1895),  57 
N.  J.  L.  645;  32  Atl.  330;  there 
is  also  an  attempt  to  classify  this 
danger  with  ,the  "assumed  risks." 

"Bartley  v.  Trorlicht  (1893), 
49  Mo.  App.  214.    See  Sec.  38a. 


employer's  liaijility  to  nis  own  servants. 


301 


Sec.  186.     Same,   Supplying  Derricks. 

In  a  leading  case  in  Rhode  Island  an  independent  con- 
tractor negligently  so  constructed  a  crane  that  the  hauling 
chains  were  not  properly  insulated  from  the  current  of  elec- 
tricity which  operated  it ;  the  employer  was  held  responsible 
although  the  appliance  became  dangerous  after  being  put 
into  use.^^  In  a  Texas  case  it  is  declared  that  a  railroad 
company's  duty  to  an  employee  to  furnish  safe  appliances 
can  not  be  affected  by  a  contract  between  it  and  a  third 
person,  to  which  such  employee  was  not  a  party,  the  con- 
tract giving  such  person  control  of  its  cars  and  requiring 
him  to  make  all  repairs  and  such  company  has  also  been 
held  liable  where  a  derrick  used  by  a  contractor  to  unload 
stones  from  a  car  was  inadequately  secured  and  fell  on  a 
brakeman.^^ 

Sec.  187.     Same,  Supplying  Railroad  Bridges. 

The  New  York  court  has  rejected  the  contention  that  a 
railroad  company  acquiring,  by  purchase,  an  additional  line 
already  built  and  in  operation,  of  which  an  existing  bridge 


^  MoRAN  V.  Corliss,  etc.,  Co. 
(1899),  21  R.  I.  386;  45  L.  R.  A. 
267;  43  Atl.  874. 

'°Gulf,  etc.,  R.  V.  Shearer 
(1892),  1  Tex.  Civ.  App.  343;  21 
S.  W.  133.  See,  also,  Gulf,  etc., 
R.  V.  Delaney  (1900),  22  Tex. 
Civ.  App.  427;  55  S.  W.  538,  in 
which  case  a  contract  for  ballast- 
ing a  railroad  track  provided  that 
"the  contractor  will  carry  on  and 
prosecute  the  work  in  such  a 
manner"'  as  the  engineer  of  the 
railroad  company  shall  direct,  and 
that  such  engineer  had  a  right  to 
have  discharged  any  workman  not 
doing  his  work  properly,  and  the 


company  was  held  liable  for  the 
death  of  one  of  its  employees, 
caused  by  a  defect  in  the  attach- 
ments of  a  derrick  used  by  the 
contractor  in  performing  such 
work,  allowing  a  wire  cable  to 
sag  down  over  the  track.  A  Min- 
nesota case  holds  that  the  erec- 
tion, fastening  and  operation  of  a 
material  hoist  constitutes  a  mere 
detail  of  the  general  work,  and 
the  apparatus  is  not  an  appliance, 
and  hence  a  servant  assumes  the 
risk  incident  to  its  operation. 
Gittcns  V.  Wni.  Porter  Co.  (1903), 
90  Minn.  512;  97  N.  W.  378. 


302       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

forms  a  part,  owes  no  obligation  to  its  employees  running 
trains  over  such  bridge,  except  to  keep  it  in  as  good  con- 
dition as  when  it  was  bought ;  and  has  a  right,  without  neg- 
ligence, to  assume  the  sufficiency  of  its  original  plan  and 
construction;  and  denied  the  application  of  the  doctrine  of 
Devlin  v.  Smith  ^°  for  two  reasons:  (1)  Because  the  de- 
fendant here  bought  the  bridge  of  another  railroad  Company 
and  without  any  selection  or  choice  of  the  builder,  such  as  was 
made  in  the  scaffold  case,  and  (2)  because  the  bridge,  unlike 
the  scaffold,  was  not  a  temporary  but  a  permanent  structure, 
intended  for  continuous  use  through  the  years.  The  court 
said :  "Assuming,  as  we  must,  what  the  jury  could  have 
found  from  the  evidence,  .  .  .  that  the  bridge,  when 
purchased,  was  unsafe  and  dangerous  by  reason  of  defects 
in  its  original  plan  and  construction,  and  which  defects  were 
obvious  to  the  eye  of  a  skilled  inspector,  and  easily  and 
surely  ascertainable  by  a  structural  analysis  determining 
its  factor  of  safety — it  was  negligence  on  the  part  of  the 
defendant  to  continue  its  use  in  the  face  of  such  obvious 
defects  without  ascertaining  their  effect  upon  its  strength 
and  capacity.  The  defects  pointed  out  by  the  evidence  were 
almost  all  obvious  to  the  eye  of  a  competent  examiner.  The 
learned  counsel  for  appellant  insists  that  the  defendant  did 
employ  suitable  and  competent  persons  to  inspect  the  bridge, 
who  did  make  the  usual  and  customary  examinations,  and 
that  there  is  no  dispute  about  that  in  the  evidence.  But  it 
is  plain  that  the  inspection  described  in  the  proofs  as  cus- 
tomary is  that  made  by  a  company  which  has  built  its  own 
bridges.  In  such  case  it  already  knows  the  plans  and  mode 
of  construction  and  is  already  responsible  for  the  lack  of 
reasonable  care  in  either  the  design  or  its  execution.  The 
subsequent  inspection  is  directed  only  to  its  perfect  repair, 
and  to  indications  of  weakness.     But  where  the  company 

="(1882),    89    N.    Y.    470;    42  Amer.  Rop.  311. 


employer's  liability  to  his  own  servants.        303 

does  not  know  either  the  safety  of  the  plan  or  the  prudence 
of  the  construction,  because  it  has  purchased  it  completed 
and  in  use,  and  knows  nothing  of  the  skill  or  want  of  skill 
of  the  builder,  an  inspection  which  takes  no  heed  of  that 
inquiry  when  defects  are  obvious,  and  lack  of  safety  is  indi- 
cated and  may  be  easily  ascertained,  is  not  sufficient.  Of 
course,  the  test  of  actual  previous  use  goes  for  something. 
It  might  justify  a  continuance  of  that  use  until  a  competent 
inspection  could  reasonably  be  made,  but  would  not  justify 
a  neglect  when  it  was  made  to  observe  and  remedy  obvious 
defects  and  elements  of  danger,  because  existing  in  the 
original  plan  and  an  omission  to  learn,  by  a  well-understood 
process,  whether  in  view  of  its  apparent  defects,  it  had  the 
ordinary  surplus  of  strength."  -^ 

In  a  Virginia  case,  a  train  went  through  one  of  the  spans 
owiner  to  the  fact  that  the  falsework  had  been  removed  too 
soon.  On  the  general  ground  that  the  reconstruction  of  a 
railroad  bridge,  without  the  interruption  of  traffic,  is  not  an 
essentially  hazardous  undertaking,  but  may  be  effected  with 
entire  safety  if  ordinary  care  is  used,  the  company  was  held 
not  liable  for  such  negligence  of  the  reputable  contractor 
employed  to  do  the  work.^^ 

Sec.  188.     Employer's  Duty  to  Inspect. 

Similar  principles  (of  non-liability)  are  sometimes  ap- 
plied in  favor  of  a  person  who  engages  the  services  of  an 
independent  contractor  to  erect  a  structure,  the  rule  being 
that  one  who,  having  no  knowledge  of  scaffold  building, 
employs  a  builder  whom  l-.e  knows  to  be  skillful  and  ex- 
perienced to  erect  a  scaffold  for  the  use  of  his  employees, 
does  not  owe  them  a  duty  of  inspection,  the  proper  per- 

=^VosBURGH    V.     Lake    Shore,  *=  Norfolk,  etc..  R.  v.  Stevens 

ETC.,  R.   (1884V  94  N.  Y.  374;  46       (1899),  97  Va.  631;  46  L.  R.  A. 
Amer.  Rep.  148.  367;  34  S.  E.  925. 


304       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

formance  of  which  would  have  disclosed  the  defect. ^^  In 
a  Michigan  case,  in  which  the  extent  of  the  employer's  duty 
to  test  the  strength  of  a  chain  was  discussed,  the  court  first 
laid  down  the  general  rule  to  the  same  effect  that  railroad 
companies  "can  not  be  held  responsible  for  hidden  defects 
in  tools  and  appliances,  if  they  have  used  reasonable  care 
in  procuring  them ;  but  they  are  not  absolved  from  the  duty 
of  testing  or  inspecting  because  they  bought  in  the  open 
market  of  reputable  dealers,  or  employed  competent  work- 
men to  construct  them.  If  any  defect  exists  which  a  careful 
inspection  or  test  would  have  discovered,  the  master  must 
be  held  to  have  knowledge  of  such  defect  and  to  be  respon- 
sible for  it."  The  court  then  says:  "It  is  urged  that  a 
railroad  has  done  all  it  can  do,  when  it  buys  of  reputable 
dealers  material  and  machinery  for  use  by  its  employees; 
that  it  can  not,  when  buying,  inspect,  personally,  every  link 
of  a  chain  to  see  whether  it  is  properly  welded.  But  it 
can  do  this  personally,  as  well  as  it  can  personally  do  any 
act  involved  in  the  operation  of  its  road.  It  not  only  can, 
but  its  duty  requires  that  it  shall,  before  it  is  placed  on  a 
car,  cause  every  link  of  every  chain  used  by  its  employees, 
in  places  or  under  circumstances  involving  danger  in  case 
the  chain  should  break,  to  be  carefully  tested  and  inspected 
by  some  one  competent  to  judge  of  its  fitness  for  the  utmost 
strain  that  is  likely  to  come  upon  it.  If  this  duty  had  been 
performed  in  this  case,  the  cold  weld  in  the  chain  would 


^  1  Labatt,  Master  &  S.,  p.  326. 
citing  Devlin  v.  Smith  (1882), 
89  N.  Y.  470;  42  Amer.  Rep.  311, 
"as  explained  in"'  Vosburgh  v. 
Lake  Shore,  etc..  R.  (1884),  94 
N.  Y.  374;  46  Amer.  Rep.  148; 
followed  in  Butler  v.  Townsend 
(1891),  126  N.  Y.  105;  26  N.  E. 
1017.  Where  an  appliance,  as  a 
float,   has   been    constructed   b}-   a 


skillful  and  experienced  builder, 
the  master  is  not  liable  to  his 
servant  for  an  injury  received  in 
its  construction,  and  is  at  liberty 
to  accept  the  same  w^ithout  in- 
spection, was  laid  down  in  Wit- 
tenberg V.  Friederich  (1896),  8 
App.  Div.  433:  40  N.  Y.  Supp. 
895;  cited  in  note  8,  Labatt,  Mas- 
ter &  S..  p.  326. 


employer's  liabimty  to  his  own  servants. 


305 


very  likely  have  been  discovered,  and  the  chain  condemned 
as  unfit  for  its  intended  use."  ^"* 


Sec.  189.    Assuring  Safety  of  Place. 

The  duty  of  a  master  to  provide  his  servant  with  a  safe 
place  to  work,  it  is  said  in  a  recent  Illinois  case,  is  a  primary 
and  absolute  duty  such  as  can  not  be  delegated  or  assigned 
so  as  to  exonerate  the  master  from  exercising  care  to  see 
that  it  is  properly  performed.  It  cannot,  therefore,  be 
assigned  to  an  independent  contractor.^-"'  But  in  the  same 
state,  where  a  street  car  conductor  was  thrown  against  a 
pile  of  stones  negligently  left  near  the  track  by  a  contractor 
engaged  to  repair  the  pavement  between  the  rails,  the  con- 
ductor was  not  entitled  to  damages  from  his  employer  for 
resulting   injuries.-"      In    England    it   has   been    held   that 


*'  Morton  v.  Detroit,  etc.,  R. 
(1890),  81  Mich.  423;  46  N.  W. 
Ill,  cited  and  quoted  in  Labatt. 
Master  &  S.,  p.  327,  note  10.  The 
United  States  Supreme  Court 
recognizes  the  obligation  of  the 
master  to  make  at  least  some 
kind  of  an  examination  or  inspec- 
tion. It  lays  down  the  rule  that 
if  a  railroad  company  after  pur- 
chasing an  engine  from  a  manu- 
facturer of  recognized  standing, 
made  such  reasonable  examina- 
tion as  was  possible  without  tear- 
ing the  machine  to  pieces,  and 
subjected  it  fully  to  all  the  ordi- 
nary tests  which  are  applied  for 
determining  the  efficiency  and 
strength  of  completed  engines, 
and  such  examination  and  tests 
disclosed  no  defect,  it  could  not, 
in  an  action  by  an  employee  of 
another  company  be  adjudged 
guilty  of  negligence  because  there 


was  a  latent  defect  that  subse- 
quently caused  the  destruction  of 
the  engine  and  injury  to  him. 
Richmond,  etc.,  R.  v.  Elliott 
(1893).  149  U.  S.  266;  37  Law 
Ed.  728;   13  Sup.  Ct.  R.  837. 

■^  Chicago,  etc.,  R.  v.  Eaton 
(1902).  194  Ills.  441;  62  N.  E. 
784;  88  Amer.  St.  Rep.  161. 

^  North  Chicago  Street  R.  v. 
Dudgeon  (1896).  69  Ills.  App.  57; 
(1900),  184  Ills.  477;  56  N.  E. 
796.  Several  New  York  cases 
seem  to  uphold  the  same  doctrine. 
Thus,  a  servant  of  the  owners  of 
a  building  under  construction  can 
not  maintain  an  action  where  he 
received  an  injury  by  reason  of 
the  negligence  of  the  employees 
of  contractors  for  the  masonry  of 
the  building  in  overloading  one  of 
the  upper  floors  with  brick  and 
stone,  McEnanny  v.  Kyle  (1887), 
14  Dalv,  268;    where   the   servant 


306       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

neither  the  master  himself  nor  an  employee  for  whose  acts 
it  is  sought  to  hold  him  responsible  can  be  held  negligent 
on  the  ground  that  they  relied  upon  the  assurance  of  an 
independent  contractor  that  the  place  of  work  into  which 
they  were  sending  their  servants  was  a  safe  one.^' 

Sec.  190.     Defect  Known  to  Employer. 

"Whichever  of  the  antagonistic  views  of  the  nature  of 
the  master's  liability  is  taken,  it  is  manifest  that  the  general 
principles,  which  determine  the  extent  of  the  responsibility 
of  an  employer  for  the  acts  of  an  independent  contractor, 
involve  the  corollary  that  the  owner  of  premises  can  not 
dictate  that  his  building  shall  be  constructed  of  improper 
materials  or  upon  an  unsafe  plan,  and  escape  liability  for 
injuries  caused  thereby  because  he  made  a  contract  with  a 
third  person  to  build  it;  nor  can  he,  with  knowledge  of  a 
weakness  or  defect  threatening  the  strength  of  the  building, 
set  a  man  at  work  immediately  under  it  and  shift  all  re- 
sponsibility upon  the  builder."  ^^ 


of  the  owners  of  a  building  being 
constructed  was  injured  by  the 
fall  of  a  heavy  post,  the  accident 
being  due  to  the  negligent  con- 
struction of  the  building,  he  can 
not  recover  against  such  owner, 
Mickee  v.  Walter  A.  Wood,  etc., 
Co.  (1894),  n  Hun  (N.  Y.),  559; 
28  N.  Y.  Supp.  918. 

="  Moore  v.  Gimson  (1889),  5 
Times  L.  R.  177;  58  L.  J.  Q.  B. 
169 ;  Mclnnulty  v.  Primrose 
(1897),  24  Sc.  Sess.  Cas.,  4th 
series,  442.  Where  a  brakeman 
was  killed  by  reason  of  stepping 
into  a  trench  dug  along  a  rail- 
road track  for  the  purpose  of 
putting  in  target  signals,  his  em- 


ployer railroad  company  was  neg- 
ligent although  it  may  have  been 
dealing  with  an  independent  con- 
tractor for  putting  in  such  signals. 
Southern  Railway  Co.  v.  Newton 
(1908),  108  Va.'ll4;  51  Am.  & 
Eng.  R.  Cas.  (N.  S.),  528;  60 
S.  E.  625. 

^  Meier  v.  Morgan  (1892),  82 
Wise.  289;  52  N.  W.  174;  33 
Amer.  St.  39.  A  master  may  be 
liable  for  injury  to  a  servant 
caused  by  an  obstruction  placed 
l)y  an  independent  contractor  in 
a  walk  which  the  servant  was  re- 
quired to  use  if  the  master  or 
any  servant  whose  duty  it  was  to 
look  after  the  safety  of  the  way, 


employer's  liability  to  his  own  servants.         307 

Sec.  191.     Question  for  Jury. 

In  a  Canadian  case  the  court  discussed  the  employer's 
liability  on  the  assumption  that  it  was  for  the  jury  to  de- 
termine whether  the  handles  of  a  box  designed  to  sustain 
a  heavy  weight  should  have  been  inspected  by  a  competent_ 
person  before  it  was  put  into  use.^'' 

Sec.  192.     Relation  Between  Employer  and  Contractor. 

W  hen  a  railroad  company  fails  to  exercise  reasonable 
diligence  in  furnishing  its  employees  a  safe  place  in  which 
to  work,  though  the  defects  which  make  the  place  unsafe 
exist  in  the  appliances  of  an  independent  contractor,  and  an 
employee  of  the  railroad  company  is  injured  thereby,  the 
railroad  company  is  liable;  e.  g.,  a  contractor  ballasting 
a  track  by  means  of  derricks  on  each  side  of  the  track,  which 
were  insecurely  anchored,  thus  allowed  a  wire  cable,  across 
the  track,  to  sag  and  injure  an  employee ;  but,  strictly,  the 
liability  was  placed  on  the  ground  that  under  the  contract, 
giving  the  chief  engineer  of  the  railroad  company  control 
of  the  work,  the  contractor  was  not  an  independent 
contractor.^" 

Sec.  193.     Same,  Master's  Duty  to  Furnish  Contractor  Safe 
Tools,  etc. 

A  Washington  court  holds  that  an  employee  can  not  hold 
his  master  liable  for  injuries  caused  by  the  master's  breach 

had  notice  of  it,  or  if  it  had  been  n.  10.    A  general  discussion  of  the 

there  so  long  that  reasonable  care  proposition  of  submitting  a  ques- 

in     the     inspection     of    the     way  tion    to   the   jury   is  to   be   found 

would  have  disclosed  it.     Burnes  elsewhere    in    this    volume.      See 

V.    Kansas   City.   etc..   R.    (1895),  Sees.  29,  72. 

129  Mo.  41 ;  31  S.  W.  347.  ""  Gulf.   etc..  R.   Co.  v.   Delancy 

="Sims    V.    Dominion    Fish    Co.  (1900).  22  Tex.  Civ.  .\pp.  427;  55 

(1901).  2  Ont.  L.   Rep.  69.  cited  S.  \V.  538. 
in   Labatt.    Master    &    S.,    p.    237. 


308       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

of  duty  to  furnish  to  one.  who  has  taken  an  independent 
contract  to  perform  a  certain  portion  of  the  work  in  which 
the  master  is  engaged,  safe  apphances  for  the  performance 
of  such  work.^^  Opposed  to  this,  it  is  said  that  it  is  the 
obligation  of  the  master  to  furnish  an  independent  con- 
tractor with  safe  appliances,  or  to  see  that  those  used  by 
the  latter  are  safe,  and  so  protect  his  own  servants,  and  that 
this  grows  out  of  his  duty  to  provide  his  servants'  a  safe 
place  in  which  to  work.^-  A  contractor  is  not  exonerated 
from  liability  to  one  of  his  employees  by  reason  of  a  defect 
in  an  appliance,  because  the  other  party  to  the  contract  was 
to  furnish  suitable  appliances,  where  the  discretion  was  left 
to  the  contractor  with  reference  to  the  appliances  to  be 
used.^^ 


Sec.  194.     Same,  Discharge  of  Franchise. 

In  line  with  probably  the  better  doctrine,  it  has  been  held 
that  w^here  the  rails  of  a  street  railway  company  are  being 
relaid  under  its  charter  and  a  permit  granted  to  it  by  the 
city,  negligence  therein  is  the  negligence  of  the  company 


''  Miller  v.  Moran,  etc.,  Co. 
(1905),  39  Wash.  631;  81  Pac. 
1089;  1  L.  R.  A.  (N.  S.),  283, 
citing  Steeples  v.  Panel,  etc.,  Co. 
(1903),  33  Wash.  359;  74  Pac. 
475,  not  a  parallel  case. 

^-Note  to  Miller  v.  Moran, 
ETC.,  Co.  supra,  in  1  L.  R.  A.  (N. 
S.),  at  p.  284,  citing  in  support 
of  the  doctrine:  Trainor  v.  Phila- 
delphia, etc.,  R.  (1890),  137  Penn. 
148;  20  Atl.  632;  Gulf,  etc.,  R.  v. 
Delanev.  supra ;  Toledo,  etc.,  v. 
Bosch '(1900),  41  C.  C  A.  482; 
101  Fed.  530;  Savannah,  etc.,  R. 
V.  Phillips  (1892),  90  Ga.  829;  17 
S.  E.  82,  distinguished;  Jacobs  v. 


Fuller,  etc.,  Co.  (1902),  67  Ohio 
St.  70;  65  N.  E.  617;  65  L.  R.  A. 
833;  13  Am.  Neg.  R.  208;  Conlon 
V.  Eastern,  etc.,  R.  (1883),  135 
Mass.  195;  15  Am.  &  Eng.  R. 
Cas.  99;  Devlin  v.  Smith  (1882), 
89  N.  Y.  470;  42  Amer.  Rep.  311, 
liability  limited;  Norfolk,  etc.,  R. 
V.  Stevens  (1899),  97  Va.  631;  34 
S.  E.  525;  46  L.  R.  A.  367,  fol- 
lowing N.  Y. ;  referring  also  to 
Conway  v.  Furst  (1895),  57  N. 
J.  L,  645;  32  Atl.  380;  Kennedy 
V.  Manhattan  Railroad  (1895), 
145  N.  Y.  288;  39  N.  E.  956. 

•-'McCall    V.     Pacific,    etc.,    Co. 
(1898),  123  Cal.  42;  55  Pac.  706. 


employer's  liability  to  his  own  servants.         309 

so  as  to  make  it  liable  to  its  employees  injured  tliereby, 
though  the  work  is  being  done  for  it  by  a  contractor.  "A 
company  seeking  and  accepting  a  special  charter  must  take 
the  responsibility  of  seeing  that  no  wrong  is  done  through 
its  chartered  powers  by  persons  to  whom  it  has  permitted 
their  exercise."  ^*  A  motorman  employed  by  a  street  rail- 
way company,  while  running  his  car  at  night,  collided  with 
cars  loaded  with  stone  ballast,  resulting  in  his  injury;  the 
stone  cars  belonged  to  contractors  who  had  contracted  with 
the  railway  company  to  ballast  a  portion  of  the  road  and 
at  the  time  of  the  accident  were  in  charge  and  under  con- 
trol of  the  contractors'  employees  to  whose  negligence,  in 
failing  properly  to  manipulate  a  block  system  of  electric 
signals,  the  accident  was  due.  The  railway  company  was 
held  liable  for  the  negligence  of  the  contractor's  employees. 
It  could  not  shift  its  charter  responsibility  on  to  the 
shoulders  of  others  but  was  responsible  for  whatever  was 
done  under  its  charter  rights.  The  plaintiff  had  a  right  to 
assume  that  the  road,  signals,  etc.,  were  being  used  by  the 
contractors  under  the  supervision  and  control  of  the  de- 
fendant company,  and  in  such  a  manner  and  under  such 
rules  and  regulations  as  to  secure  the  safety  of  both.^^ 

Sec.  195.     Negligence  of  Contractor's  Servant. 

The  question  whether  an  employer  is  answerable  to  his 
own  servants  for  the  negligence  of  the  contractor's  servants 
occasionally  arises.     It  has  been  said  that  a  railway  com- 

*•  Noitli    Chicago    Street    R.    v.  independent  onl}'  as  to  the  work 

Dudgeon  (1900),  184  Ills.  477;  56  of  constructing  the   road  bed;   in 

N.   E.   796.     See,   generally.   Sees.  all  matters  incident  to  the  use  of 

115-120.  the     track     the     contractors     and 

**  Ortlip    V.     Philadelphia,     etc.,  their     workmen     represented    the 
Traction   Co.    (1901),  9  Pa.    Dist.  will   of   the   company  and   its   re- 
Rep.  291;    198    Penn.   St.   586;   48  sponsibility  remained. 
Atl.  497.     Here  the  contract  was 


310       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

pany  which  contracts  for  the  erection  of  a  train  shed  is 
not  under  a  duty  to  see  that  the  workmen  in  the  employ  of 
the  contractor  and  subcontractor  handle  their  tools  with 
reasonable  care,  and  hence  it  is  not  liable  when  a  workman 
negligently  allows  a  tool  to  fall  upon  one  of  the  defendant's 
trainmen.^*^ 

Sec  196.     Same,  Whether  Fellow-Servants. 

"In  order  that  the  rule   (i.  e.,  the  fellow-servant  rule) 
should  apply  it  is  necessary  that  the  servant  injured  and  the 
servant  at  fault  should  be  fellow-servants  employed  in  the 
same  service.    They  must  have  a  common  master.     .      .      . 
This  excludes  from  the  category      .      .      .      the  servants 
of  such  (independent)  contractor  in  their  relation      .      . 
to  the  servants  of  another  independent  contractor  engaged 
by  the  same  employer."^'     Under  this  rule  one  who,  at  the 
time  he  was   injured,   did   not  know   he   had   temporarily 
passed  into  the  service  of  the  party  from  whom  he  is  seek- 
ing an  indemnity  is  put  upon  the  same  footing  as  one  who 
had  always  remained  outside  that  service.^^^     It  has  been 
held  that  the  fact  of  a  workman's  being  an  independent  con- 
tractor does  not  make  him  any  the  less  a  co-servant,  in  the 
technical  sense,  of  those  who  are  working  for  wages  under 
the  same  master.     But  these  decisions,  one  leading  author 
insists,  are  essentially,  though  not  in  terms,  inconsistent  with 
the  cases  holding  a  master  liable  to  a  servant  for  the  acts  of 


^  Fitzpatrick  v.  Chicago,  etc.,  R. 
(1888),  31  Ills.  App.  649. 

''Huff.  Agcy.,  2d  td.,  Sec.  273, 
citing  Johnson  v.  Lindsay  (1891), 
A.  C.  371. 

=«  Morgan  v.  Smith  (1893),  159 
Mass.  570;  35  N.  E.  101;  15  Am. 
Neg.  Cas.  667,  n.  "It  is  far  from 
being  a  matter  of  regret  that  the 


courts  should  have  restricted  the 
defense  of  assumed  risk  of  em- 
ployment, to  cases  where  the  neg- 
ligent and  the  injured  servants 
are  hired  by  the  same  master." 
The  rule  and  the  exception  are 
founded  ultimately  on  public  pol- 
icy.   Labatt,  Master  &  S.,  Sec.  491. 


employer's  liability  to  his  own  servants. 


311 


an  independent  contractor  and  the  hitter's  servants.  "If 
there  is  no  common  emj)loyment  as  between  the  servants 
of  an  independent  contractor  and  the  servants  of  the  con- 
tractee.  it  is  clear  there  can  be  no  common  employment 
as  between  the  latter  servants  and  the  independent  con- 
tractor himself."  ^^  In  brief,  the  doctrine  of  common  em- 
ployment applies  only  where  the  action  is  brought  for  an 
injury  to  a  servant  or  agent  against  the  principal  by  whom 
such  servant  was  himself  employed.''"  The  reason  is  that 
a  defense,  which  is  based  on  the  hypothesis  that,  as  acces- 
sory to  the  contract  of  hiring,  there  is  implied  on  the  serv- 
ant's part  an  agreement  to  assume  the  risk  of  being  in- 
jured by  the  negligence  of  his  co-employee,  can  not 
properly  be  invoked  where  he  is  suing  a  person  with  whom 
he  has  no  contractual  relations.^^ 

In  the  cases  cited  below,  the  contractor's  employee  en- 
gaged in  constructing  or  operating  railways,  was  held  not 
to  be  a  fellow-servant  of  a  regular  employee  of  the  rail- 
road company  itself;'*-  likewise  in  the  other  cases  cited 
of    loading    and    unloading    freight,    etC*^      A    building 


*Labatt,  Master  &  S.,  491a, 
criticising  Ford  v.  Oamaru  (1883), 
New  Zeal.  L.  R.,   1   Sup.   Ct.   97. 

'•  Labatt,  Master  &  S.,  Sec.  490, 
citing  numerous  cases. 

^'Idem,  p.  1341. 

*- Union,  etc.,  R.  v.  Billiter 
(1890),  28  Nebr.  422;  44  N.  W. 
483;  16  Amer.  Neg.  Rep.  580,  n. ; 
Norman  v.  Middlesex,  etc.,  Co. 
(1905),  71  N.  J.  L.  652;  60  Atl. 
936;  Young  v.  New  York,  etc.,  R. 
(1859),  30  Barb.  (N.  Y.),  229; 
Brown  v.  Sullivan  (1888),  71 
Tex.  470 ;  10  S.  W.  288 ;  Sherman 
V.  Delaware,  etc.,  Co.  (1899),  71 
Vt.  325 ;  45  Atl.  227. 


"Robinson  v.  Pittsburgh,  etc., 
Co.  (1904),  63  C.  C  A.  258;  129 
Fed.  324;  Ford  v.  Arbuckle 
(1907),  107  App.  Div.  221;  94  N. 
Y.  Supp.  1097;  John  Spry,  etc., 
Co.  V.  Duggan  (1898),  80  Ills. 
App.  394,  afifd  (1899),  182  Ills. 
218;  54  N.  E.  1002;  Svenson  v. 
Atlantic,  etc.,  Co.  (1874),  82  App. 
Div.  500;  81  N.  Y.  Supp.  544; 
Crawford  v.  The  Wells  City 
(1899),  38  Fed.  47;  Kane  v. 
Mitchell,  etc..  Co.  (1895),  90  Hun 
(N.  Y.),  65;  35  N.  Y.  Supp.  581, 
afifd  153  N.  Y.  680;  48  N.  E. 
1105;  Holmes  v.  Birmingham, 
etc.,  R.    (1904),   140  Ala.  ^OS;  37 


312       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

owner's  employees,  constructing  a  scaffold  for  a  contract- 
ing plasterer's  use,  are  not  fellow-servants  of  such  con- 
tractor's employee  injured  because  of  the  negligent  con- 
struction thereof."*"*  That  an  independent  contractor 
instructed  his  foreman  to  obey  a  general  superintendent's 
directions,  employed  by  the  building  owner  to  see  that  the 
various  contracts  were  complied  with,  does  not  affect  the 
relation  of  the  contractor's  employees  so  as  to  make  them 
co-employees  within  the  rule  regarding  fellow-servants' 
negligence. ^^  Employees  of  a  subcontractor  and  of  the 
original  contractor,  who  are  working  on  the  same  building 
but  not  for  the  same  master  or  under  the  same  supervision, 
are  not  fellovz-servants.^*^  A  contracting  plumber's  em- 
ployee and  the  building  owner's  employee  are  not  fellow- 
servants."*''  Servants  in  a  general  employer's  hire  and  serv- 
ants of  his  subcontractor  or  of  an  independent  contractor 
are  not  fellow-servants  unless  the  circumstances  show  that 
the  servant  submitted  himself  to  the  control  of  another 
person  than  his  proper  master  and  either  expressly  or  im- 
pliedly consented  to  accept  that  person  as  his  master  for 
the  purpose  of  the  common  employment.^^  Persons  em- 
ployed by  different  masters  although  engaged  in  a  common 


So.  338;  Anderson  v.  Boyer 
(1897),  13  App.  Div.  258;  43  N. 
Y.  Supp.  87,  reversed  on  other 
grounds  (1898),  156  N.  Y.  93;  50 
N.  E.  976;  Hopper  v.  Southern, 
etc.,  Co.  (1903),  133  N.  C.  375; 
45  S.  E.  771.  See,  also,  generally. 
Lookout  Mt.,  etc.,  Co.  v.  Lea 
(1900),  144  Ala.  169;  39  So.  1017; 
42  Am.  &  Eng.  R.  Cas.  10;  Krul- 
der  V.  Woolverton  (1895),  11 
Misc.  537;  32  N.  Y.  Supp.  742, 
aff'd  152  N.  Y.  633;  46  N.  E. 
1148. 


**  Driscoll  V.  Humes,  etc.,  Co. 
(1908,  R.  L),  69  Atl.  766. 

"Coates  V.  Chapman  (1900), 
195  Penn.  109;  45  Atl.  676. 

'"Dale  V.  Hill,  etc.,  Co.  (1904), 
108  Mo.  App.  90;  82  S.  W.  1092. 

*' Fisher  v.  Minegaux  (1906), 
73  N.  J.  L.  424;  63  Atl.  902. 

^' Kelly  v.  Tyra  (1908),  103 
Minn.  176;  114  N.  W.  750;  17 
L.  R.  A.  (N.  S.),  334,  head-note 
by  Jaggard,  J. 


employer's  liabflity  to  nis  own  servants. 


313 


work  are  not  ordinarily  fellow-servants.^^  The  servants 
of  a  contractor  are  the  servants  of  the  principal  only  where 
the  latter  has  the  right  to  select  and  control  them.^^ 

Sec.  197.     Negligence  of  Servants  of  Lessor  and  Others. 

New  Hampshire  courts  hold  railroad  companies  liable 
for  injuries  received  by  trainmen  by  reason  of  defects  neg- 
ligently permitted  to  exist  in  the  track  of  another  company 
over  which  it  has  running  powers,  although  the  duty  of 
keeping  it  in  repair  devolved  on  the  latter  company  and 
the  trainmen  are  aware  of  the  arrangement  between  the 
two  companies. ^^  And  it  has  been  held  that  a  railway  com- 
pany's servant  assumes,  as  an  ordinary  peril,  the  risks  of 
injury  through  the  negligence  of  the  servants  of  another 
company  which  is  operating  the  same  line  under  a  lease. 
But  the  application  of  the  doctrine  of  assumed  risk  has 
been  criticised.^-  On  the  theory  that  the  licensees  were 
discharging  a  positive  duty,  owing  by  the  master  to  his 
servant,  it  has  been  held  that  persons  who,  under  a  license 
from  the  master,  put  in  new  burners  in  a  brick-kiln  for 
the  purpose  of  testing  their  advantages,  are  in  the  position 
of  vice-principals,  so  far  as  relates  to  making  such  appa- 
ratus safe  and  suitable  for  the  employees  or  giving  notice 


"Head-note  by  Jaggard,  J.,  in 
Kelly  v.  Tyra,  supra,  citing  Lar- 
son V.  American,  etc.,  Co. 
(1905),  40  Wash.  224;  82  Pac. 
294;  111  Amer.  St.  Rep.  904; 
Englar  v.  Seattle  (1905),  40 
Wash.  72;  82  Pac.  136;  19  Amer. 
Neg.  Rep.  49;  Norman  v.  Middle- 
sex, etc.,  Co.  (1905),  71  N.  J.  L. 
652;  60  Atl.  9.^6.  See  Dinon  v. 
Chicago,  etc..  R.  (1891),  109  Mo. 
413;   19  S.  W.  412;   18  L  R.  A. 


792,  as  to  "department  rule  of 
fellow-servants." 

"*  Burke  v.  Norwich,  etc.,  R.  Co. 
(1867),  34  Conn.  474:  13  Amer. 
Neg.  Cas.  662. 

"  Story  V.  Concord,  etc.,  R. 
ri900\  70  N.  H.  364;  48  Atl.  2S8. 

'-  Clark  V.  Chicago,  etc..  R. 
(1879^,  92  Ills.  43;  Bauer  v.  St. 
Louis,  etc.,  R.  (1885),  46  Ark. 
388.  Criticised  by  Labatt.  Sec 
49. 


31-i       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

of  increased  danger.^^  One  railroad  company  permitting 
another  company  to  use  a  section  of  its  main  line  to  reach 
a  terminal  point  has  been  held  liable  to  one  of  its  own 
employees  for  personal  injuries  from  the  latter  company's 
negligence  in  running  its  train  over  such  section.^* 

Sec.  198.     Liability  Regarding  Subcontractor. 

A  general  contractor  employing  a  subcontractor  to  put 
in  some  floors  which  are  not  to  be  delivered  as  complete, 
is  not  liable  for  injuries  to  an  employee  from  falling 
through  a  repaired  portion  of  the  floor  which  had  not 
dried,  as  the  subcontractor  should  have  foreseen  the  likeli- 
hood of  using  the  floor  by  other  employees  and  should 
have  protected  the  incomplete  portion. ^^  Where  by  con- 
tract between  defendant  and  a  transfer  company  for  the 
removal  of  defendant's  boiler  the  transfer  company  had 
nothinar  to  do  with  the  removal  of  the  brick  foundation 
of  the  boiler  and  defendant's  servant  while  removing  brick, 
under  the  order  of  the  defendant's  foreman,  was  killed 
by  the  boiler  falling  on  him  owing  to  the  breaking  of  a 
chain  by  which  the  transfer  company  had  hoisted  the  boiler 
and  then  had  it  suspended,  the  transfer  company  was  not 
liable  since  it  was  the  removal  of  the  brick  under  defen- 
dant's order  that  caused  the  death. ^"^ 


'^  Pullman,  etc.,  Co.  v.  Laack 
(1892),  143  Ills.  242;  18  L.  R.  A. 
215;  32  N.  E.  285. 

"Central  R.  Co.  v.  Passmore 
(1892),  90  Ga.  203;  15  S.  E.  760; 
Macon,  etc.,  R.  Co.  v.  Mayes 
(1873),  49  Ga.  355;  15  Amer. 
Rep.  678. 

^^  St.  Louis,  etc.,  Co.  v.  Dawson 
(1902),  30  Tex.  Civ.  App.  261;  70 
S.  W.  450.     The  relation  existing 


between  servants  of  an  original 
contractor  and  those  of  a  sub- 
contractor are  in  legal  effect  the 
same  as  that  between  employees 
of  the  principal  and  of  the  con- 
tractor. Note  to  Kelly  v.  Tyra 
(1908,  Minn.),  in  17  L.  R.  A.  (N. 
S.),  334. 

■■"'  Chicago,  etc.,  Co.  v.  Moren 
(1900).  185  Ills.  571;  57  N.  E. 
733. 


CHAPTER    VIII. 

Employer's    Liability    to    Contractors    and    Their 

Servants. 


SECTION 

200.  Employer's  liability  to  con- 
tractors, generally. 

Same — Relation  of  parties. 

Same — Liability  on  contract. 

Liability,  generally,  to  con- 
tractors' servants. 

Joint  liability  of  employer 
and  contractor. 

Relation  of  parties. 


SECTION 


206. 


201. 
202. 

203. 

204. 
205. 


Liability   as  to  condition  of 
premises. 

207.  Same— Employer  controlling 

or  directing  work. 

208.  Same— Safety  of  premises. 

209.  Same — Employer     accepting 

work. 

210.  Same — Competency    of    co- 

workers. 

211.  Contributory  negligence. 


Sec.  200.     Employer's  Liability  to  Contractors,   Generally. 

It  is  the  rule  that  the  owner  of  property  owes  to  an  in- 
dependent contractor  and  his  servants,  at  work  thereon, 
the  duty  of  exercising  reasonable  care  to  have  the  premises 
in  a  safe  condition  for  the  work,  unless  the  defects  occa- 
sioning the  injury  were  known  to  the  contractor.^  Where 
a  proprietor  engages  an  independent  contractor  to  do  work 
upon  his  premises,  the  contractor,  while  executing  the 
work,  will  be  there  in  pursuance  of  the  invitation  of  the 
proprietor  and  the  proprietor  will,  under  general  principles, 
be   under  the   duty   of  exercising  ordinary   or   reasonable 


'John  Spry,  etc..  Co.  v.  Duggan 
(1898),  80  Ills.  App.  394;  Sesler 
V.  Rolfe,  etc.,  Co.  (1902),  51  W. 
Va.  318;  41  S.  E.  216;  Hoadley 
V.  International,  etc.,  Co.    (1899), 


72  Vt.  79;  47  Atl.  169;  Barowski 
V.  Sclniltz  (1901),  112  Wise.  415; 
88  N.  W.  236.  Cf.,  Sack  v.  St. 
Louis,  etc..  Co.  (1905),  112  Mo. 
App.  476;  87  S.  W.  79. 

315 


316       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

care  to  the  end  of  promoting  the  contractor's  safety.^  But, 
it  has  been  held,  a  house-owner  is  not  liable  where  a  con- 
tractor, employed  to  put  down  a  stone  sidewalk,  falls  into 
an  unguarded  excavation  in  the  course  of  the  operation.^ 

Sec.  201.     Same,  Relation  of  the  Parties. 

An  independent  contractor,  as  such,  is  not  deemed  a 
fellow-servant  of  the  ordinary  employees  of  the  proprietor, 
within  the  meaning  of  the  rule  exonerating  a  master  from 
liability  for  injuries  done  to  one  servant  by  the  negligence 
of  another  servant  engaged  in  the  same  common  employ- 
ment. The  independent  contractor  stands  on  the  footing 
of  a  stranger,  or  if  he  is  injured  through  a  defect  in  the 
premises  of  the  proprietor,  he  is  entitled,  equally  with  a 
servant  of  the  proprietor,  to  invoke  the  principle  that  the 
proprietor  stands  under  the  absolute  duty  of  taking  reason- 
able care  and  exercising  reasonable  skill  to  the  end  that  the 
premises,  tools  and  appliances  put  in  tlie  hands  of  his  serv- 
ants are  reasonably  safe  for  the  purposes  intended.  If  the 
contractor  does  not  occupy  this  favorable  position  he,-  at 
least,  occupies  a  position  as  favorable  as  that  of  one  who 
is  invited  to  come  upon  another's  premises  and  who  is  in- 


^  Gardner  v.  Friederich  (1898), 
25  App.  Div.  521 ;  49  N.  Y.  Supp. 
1077.  For  liability  of  owners  of 
a  dry  dock  for  letting  a  steamer 
fall,  injuring  it,  which  they  were 
endeavoring  to  raise  by  their  own 
methods,  see  Norwich,  etc.,  Co. 
V.  New  York,  etc.,  Co.  (1884),  22 
Fed.  672.  See,  generally,  note  37, 
Thomps.  Neg.,  Sec.  625.  "A. 
owned  a  building  on  which  B. 
agreed  for  a  lump  sum  to  trim 
certain  stonework.  B.  should 
have   furnished   his    own    scaffold 


but  as  he  did  not,  A.  allowed  him 
to  use  one  which  had  been  hung 
by  painters  over  a  rotten  cornice 
which  gave  way  and  injured  B. 
It  was  held  that  A.  was  not  liable 
to  B.,"  citing  Mathes  v.  Kerrigan 
(1886),  53  N.  Y.  Super.  431. 

"Schweikardt  v.  St.  Louis 
(1876).  2  Mo.  App.  571.  (The 
possibility  of  the  plaintiff's  being 
entitled  to  recover  on  the  ground 
of  the  intrinsic  danger  of  the 
work  was  not  discussed.  See 
Sees.  65,  66,  72,  115,  ante.) 


employer's  liability  to  contractors  and  servants.     317 

jured  in  consequence  of  a  dan^^crous  pitfall  therein.^ 
Where  two  independent  contractors  are  engaged  for  one 
employer  upon  the  same  job  (c.  g.,  one  to  do  mason  work 
and  another  carpenter  work)  and  in  consequence  of  the 
negligence  of  one  the  other  or  his  work  is  injured,  he  can 
not  recover  of  the  employer  unless  he  was  in  fault  in  se- 
lecting the  wrong-doing  contractor.*^  It  is  to  be  observed 
that  the  owner  is  not  charged  with  the  absolute  duty  of 
having  the  premises  safe;  his  duty  is  discharged  by  the 
exercise  of  reasonable  care.^ 


Sec.  202. Same,  Liability  on  Contract. 

The  ordinary  rules  as  to  legality  of  contract,  construc- 
tion of  its  terms,  performance  of  conditions  precedent, 
measure  of  damages,  public  policy,  and  the  like,  govern  in 
cases  involving  the  liability  of  the  employer  to  one  under- 


*  See  Thomps.  Neg.,  Sees.  679, 
967.  When  a  ladder  hole  had 
been  cut  in  a  platform  to  a  mine 
while  the  mine  was  in  active  op- 
eration, iw  the  direction  of  the 
superintendent  of  the  mine,  and 
an  employee  of  the  mme  owners 
fell  through  the  hole  and  was  in- 
jured, because  it  was  not  guarded 
or  lighted  and  he  had  not  been 
warned,  the  mine  owners  were 
held  responsible,  and  it  was  held 
immaterial  whether  plaintiff  was 
a  servant  or  independent  con- 
tractor. Mayhew  v.  Sullivan 
(1S84),  76  Me.  100.  It  has  been 
held  that  one  engaged  in  selling 
and  delivering  wood  to  a  mill  pro- 
prietor at  so  much  per  cord  is  not 
the  proprietor's  employee  so  as 
to  put  him  in  the  situation  of  one 


who  takes  the  risk  upon  himself 
of  the  negligence  of  those  run- 
ning the  mill.  The  court  says 
that  as  to  the  proprietor,  he 
stands  "precisely  as  any  other 
man  stands  who,  in  consequence 
of  his  business  wants,  had  occa- 
sion to  visit  the  mill."  Wads- 
worth  V.  Duke  (1873),  50  Ga.  91. 
The  repairer  of  apparatus  in  a 
paper  mill  was  steamed  to  death 
owing  to  the  negligence  of  the 
defendant  in  failing  properly  to 
protect  him  while  at  work,  and 
the  proprietor  was  held  liable. 
Hoadley  v.  International,  etc.,  Co. 
(1899),' 72  Vt.  79;  47  Atl.  169. 

"Tread well  v.  New  York  (1851), 
1  Daly   (N.  Y.),  123. 

°  McKeon  v.  Louis  Weber,  etc., 
Co.  (1903),  84  N.  Y.  Supp.  913. 


318       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

taking    to    perform    a    given    work    as    an    independent 
contractor/ 


Sec.  203.     Liability,  Generally,  to  Contractor's  servants. 

"The  proprietor  does  not  owe  to  a  person,  employed 
on  his  premises  in  the  service  of  an  independent  contractor, 
the  duty  to  furnish  a  safe  place  to  work  or  safe  appliances, 
and  is  not  liable  in  damages  for  injuries  occasioned  by 
his  failure  to  do  so.  This  duty  belongs  to  the  servant's 
master."  ^  "The  decisions  under  this  head  do  not  seem 
to  be  ver}^  clear  or  harmonious,  but  the  governing  princi- 
ple is  not  difficult  of  ascertainment.  Roundly  stated,  it 
is  that  the  relation  of  master  and  servant  does  not  subsist 
between  the  proprietor  and  the  servants  of  the  contractor 
and  therefore  those  obligations  which  the  law  imposes  upon 
the  master  for  the  protection  of  one  injured  while  in  his 
service,  do  not  rest  upon  the  proprietor  but  on  the  con- 
tractor." ^    In  the  absence  of  any  evidence  tending  to  show 


'  As  illustrative  cases,  see  Tal- 
bott  V.  Board,  etc.  (1908,  Ind.), 
85  N.  E.  376;  Hunt  v.  Boston, 
etc.,  R.  Co.  (1908,  Mass.),  85 
N.  E.  446;  National,  etc.,  Co.  v. 
Foster,  etc..  Co.  (1908,  Ind.),  85 
N.  E.  489. 

'  White's  Supp.  to  Thomps.  Neg., 
p.  101,  citing  Omaha,  etc.,  Co.  v. 
Hargadine  (1904,  Nebr.),  98  N. 
W.  1071 ;  36  Am.  &  Eng.  Ry.  Cas. 
(N.  S.),  827;  Callan  v.  Pugh 
(1900),  66  N.  Y.  Supp.  1118;  54 
App.  Div.  545 ;  Southern  Oil  Co. 
V.  Church  (1903),  32  Tex.  Civ. 
App.  325;  74  S.  W.  797;  75  S. 
W.  317;  16  Am.  Neg.  R.  611,  n.; 
co)itra,  Kentucky,  etc.,  Co.  v. 
Bryan  (1905,  Ky.),  84  S.  W.  537. 
The  proprietor  does  not  owe  the 


same  duty  to  a  servant  of  an  in- 
dependent contractor  for  the  con- 
struction of  a  building  upon  the 
premises  of  the  proprietor,  which 
he  would  owe  to  his  own  servants 
if  he  were  doing  the  work  by 
means  of  his  own  servants ;  but 
such  duty  devolves  upon  the  con- 
tractor. Humpton  v.  Unterkircher 
(1896),  97  Iowa,  509;  66  N.  W. 
776;  14  Am.  Neg.  Cas.  595. 

"Thomps.  Neg.,  Sec.  680.  The 
owner  of  real  property  does  not 
owe  to  a  person  employed  on  his 
premises  in  the  service  of  an  in- 
dependent contractor  the  duty  to 
furnish  a  safe  place  to  work  and 
for  omission  to  do  so  he  is  not 
liable  in  damages.  He  merely 
owes  the  duty  to  commit  no   act 


employer's  liability  to  contkactors  and  servants.     319 

bad  faith  in  a  subcontract  for  the  construction  of  a  rail- 
road track,  the  question  of  barl  faith  should  not  be  sub- 
mitted to  a  jury  in  an  action  to  hold  the  contractor  liable 
for  injuries  to  an  employee  of  the  subcontractor.^'^  A 
railroad  company  must  take  notice  of  the  fact  tliat  work- 
men of  its  contractor  are  at  work  on  its  trestles  and  run 
its  trains  with  care  proportionate  to  the  danger  of  the  men  so 
employed." 

Sec.  204.    Joint  Liability  of  Employer  and  Contractor. 

If  a  contractor  undertakes  to  place  a  structure  on  foun- 
dations to  be  furnished  by  the  landowner  and  the  land- 
owner knowingly  furnishes  an  insufficient  foundation,  and 
the  contractor  knowing  of  such  insufficiency,  directs  his 
employees  to  work  on  the  structure  and  they  are  injured 
in  consequence  of  the  giving  way  of  the  foundation,  a 
joint  recovery  may  be  had  against  the  owner  and  the 
contractor.  ^- 


of  affirmative  negligence.  Callan 
V.  Pugh  (1900).  54  App.  Div.  (N. 
Y.),  545;  66  N.  Y.  Supp.  1115. 
In  Vincennes,  etc.,  Co.  v.  White 
(1890).  124  Ind.  376,  380,  the 
court  says :  "It  appears  from  the 
evidence  in  this  cause  that  the  ap- 
pellee (a  contractor's  servant) 
was  injured  by  the  caving  in  of 
a  ditch  wlyph  he  was  assisting  to 
construct  through  a  soil  com- 
posed largely  of  sand  and  gravel. 
The  liability  of  the  trench  to  cave 
in  by  reason  of  the  peculiarity  of 
the  soil  and  the  danger  attending 
the  work  were  open  alike  to  the 
observation  of  all  the  parties.  It 
has  been  repeatedly  held  that 
under    such    circumstances    there 


can  be  no  recovery."   Citing  cases. 

'"Good  v.  Johnson  (1907),  38 
Colo.  440;  8S  Pac.  439:  8  L.  R. 
A.  (N.  S.),  896. 

"  Interstate,  etc.,  R.  Co.  v.  Fox 
(1889),  41  Kans.  715;  39  Amcr. 
&  Eng.  Ry.  Cas.  318;  21  Pac.  797. 

'-  Consolidated,  etc.,  Co.  v. 
Keifer  (1890),  134  Ills.  481;  25 
N.  E.  799;  10  L.  R.  A.  696;  20 
Amcr.  St.  Rep.  688.  The  father 
of  contractors  engaged  in  the  re- 
moval of  cinders  from  the  yard 
of  an  electric  company  was  killed 
by  a  shock  of  electricity  com- 
municated through  a  metal  hoe 
wl-.ich  he  hung  over  a  wire  while 
raking  down  a  pile  of  cinders 
thereunder.      The     electric     com- 


320       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


Sec.  205.     Relation  of  Parties. 

Circumstances  may  exist  which  create  or  estabhsh  the 
relation  of  master  and  servant  between  one  employer  and 
his  contractor's  servant,  for  examples  of  which  see  the 
cases  cited  in  the  foot  note.^^  X.  contracted  with  prison 
directors  for  convict  labor  on  a  building  being  erected, 
the  convicts  to  remain  in  the  custody  of  the  guards  while 
at  work;  plaintiff,  a  convict,  was  assigned  to  operate  an 
elevator  and  while  on  duty  was  hurt;  it  was  held  that  the 
relation  of  master  and  servant  so  far  existed  between  X. 
and  the  plaintiff  that  X.  was  liable  for  any  injury  result- 
ing from  his  failure  to  exercise  reasonable  care  in  provid- 
ing safe  machinery. ^^  A  railway  news  agent,  riding  on 
a  train  in  the  usual  course  of  his  employment,  whose  trans- 
portation is  merely  an  incident  to  a  contract  between  his 
employer  and  the  railway  company  permitting  the  em- 
ployer to  sell  certain  goods  on  the  train,  is  not  a  passenger 
within  the  meaning  of  a   Pennsylvania  statute  providing 


pany  was  not  liable  since  it  was 
the  duty  of  the  sons  as  con- 
tractors to  have  warned  their 
father  of  the  danger  from  this  act. 
Proctor  V.  San  Antonio  Street  R. 
(1901),  26  Tex.  Civ.  App.  148;  62 
S.  W.  939. 

''Chicago  V.  Robbins  (1862),  2 
Black  (U.  S.),  418;  Solomon 
Railroad  v.  Jones  (1833),  30 
Kans.  601;  2  Pac.  657;  15  Am.  & 
Eng.  R.  Cas.  201 ;  Good  v.  John- 
son (1907),  38  Colo.  440;  88  Pac. 
439;  8  L.  R.  A.  (N.  S.),  896 
See.  also.  Chap.  I,  ante. 

"  Baltimore,  etc.,  Co.  v.  Jamar 
(1901),  93  Md.  404;  49  Atl.  847; 
86  Amer.  St.  Rep.  423.  A  person 
employed  by  one  who  has  entered 
into    a    contract    with    a    railroad 


company  to  do  a  job  of  work  on 
its  road,  is  obviously  entitled  to 
reasonable  care,  and  this,  although 
the  contractor  ma}'  have  entered 
into  an  agreement  with  the  rail- 
road company  whereby  the  latter 
is  released  from  all  chims  for  in- 
juries to  subcontractors,  workmen, 
and  others,  by  reason  of  the  neg- 
ligence of  the  servants  of  the 
railroad  company.  Such  an  agree- 
ment is  inoperative  as  against  the 
employee  of  the  contractor  unless 
he  is  made  privy  to  it  in  some 
other  way  than  by  the  mere  fact 
of  leing  employed  by  the  con- 
tractor. Ominger  v.  New  York, 
etc..  R.  (1875),  4  Hun  (N.  Y.), 
159. 


employer's  liability  to  contractors  and  servants.     321 


that  "when  any  person  shall  sustain  personal  injury  or 
loss  of  life  while  lawfully  engaged  or  employed  on  or  about 
the  premises  of  a  railroad  company  or  in  or  about  any 
train  or  car  therein  or  thereon,  of  which  said  person  is 
not  an  employee,  the  right  of  action  against  the  company 
shall  be  such  only  as  would  exist  if  such  person  were  an  em- 
ployee," but  further  providing  that  the  statute  shall  not 
apply  to  passengers. ^'^  Where  a  railroad  company  fur- 
nished and  hauled  a  car  loaded  with  concrete  for  a  con- 
tractor, who  was  building  piers  in  the  company's  yard  for 
an  overhead  highway  bridge,  the  car  being  loaded  and  un- 
loaded by  the  contractor's  employees,  such  employees  were 
rightfully  about  the  car  while  unloading  and  as  well  en- 
titled to  safetv  from  anv  unusual  danger  in  being-  near  it 
as  a  consignee  unloading  and  taking  away  freight  at  a 
depot.  ^"^     The  owner  or  lessee  of  a  mine  who  has  made  a 


"  Smallwood  v.  Baltimore,  etc., 
R.  (1905),  215  Penn.  St.  540;  64 
Atl.  732;  7  Am.  &  Eng.  Ann.  Cas. 
525,  in  which  latter  report  the 
annotater  says:  "The  reported 
case  seems  to  be  the  onlj'  one  in 
which  the  fellow-servant  rule  has 
been  adopted  with  regard  to  news, 
agents,  the  few  other  cases  on  the 
sul)ject  uniformly  regarding  such 
persons  as  passengers,"  citing 
cases.  It  has  been  held,  under 
statute,  that  the  presumption  of 
negligence  imposed  upon  railroad 
companies  in  all  cases  where  in- 
jury ensues  by  reason  of  the  run- 
ning of  cars,  etc.,  arises  in  favor 
of  an  employee  whenever  it  is 
affirmatively  shown  that  he  has 
been  injured  "by  the  running  of 
the  locomotives,  cars,  or  other 
machinery"  of  the  company,  and 
that  he  himself  was  without  fault. 


This  general  rule  applies  though 
at  the  time  of  the  injury  to  a 
fireman  neither  the  engine  nor  the 
fireman  is  engaged  in  the  usual 
or  ordinary  business  of  the  com- 
pany as  a  common  carrier,  they 
having  been  lent  by  the  railroad 
company  to  a  contractor,  under 
whose  directions  they  are  engaged 
in  constructing  an  extension  of 
the  road,  so  that,  where  the  en- 
gine is  derailed  by  reason  of  its 
defective  condition,  injuring  the 
fireman,  the  presumption  is  that 
such  defective  condition  was  due 
to  the  negligence  of  the  railroad 
company.  Savannah,  etc..  Rail- 
road V.  Phillips  (1892),  90  Ga. 
829;  17  S.  E.  82. 

"R\an  V.  New  York,  etc.,  R. 
(1902),  115  Fed.  197.  Employees 
of  a  railroad  company's  contractor 
working  on  a  passage  track  con- 


322       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


contract  for  its  operation  by  another  person  npon  such 
a  footing-  that  the  latter  is  put  in  full  control  of  the  work, 
and  charged  with  the  duty  of  seeing  that  the  appliances, 
which  are  used,  are  kept  in  safe  condition,  is  not  liable  to 
the  servant  of  the  contractor  who  is  injured  by  the  break- 
ing of  the  rope  by  which  the  cage  is  lowered  and  hoisted.  ^^ 
The  lessor  of  a  railroad  is  not  liable,  as  master,  for  in- 
juries to  the  employees  of  the  lessee.  ^^  A  city  contracted 
with  X.  to  take  down  and  rebuild  a  bridge  used  as  a  high- 
way over  a  railroad's  track.  In  doing  so,  as  more  men 
were  needed,  temporarily,  on  one  side  the  bridge  than 
were  there  at  work,  they  were  called  across  to  that  side ; 
had  a  larger  force  been  employed  they  need  not  have 
crossed  the  track.  Held :  An  action  would  not  lie  against 
the  railroad  company  for  an  injury  to  a  workman  by  being 
struck  by  a  locomotive  while  so  crossing  the  track. ^® 


structed  on  the  right  of  way  of  a 
railroad  company  are  not  tres- 
passers while  leaving  a  dirt  train 
on  the  passage  track  and  crossing 
the  main  track,  where  the  pas- 
sage track  was  located  by  the  rail- 
road company  for  the  contractor's 
use  and  such  use  was  by  the 
permission  of  the  railroad  com- 
pany. Southern  Railroad  v.  Drake 
(1902),  107  Ills.  App.  12. 

"Shaw  V.  West,  etc.,  Co.  (1872, 
Ct.  of  Sess.),  9  Scot.  L.  R.  254; 
Lendberg  v.  Brotherton,  etc.,  Co. 
(1889),  75  Mich.  84;  42  N.  W. 
675.  It  has  been  held  that  the 
control  given  to  a  mine  owner  by 
the  English  Coal  Mines  Regula- 
tion Act  of  1887,  and  rules  there- 
under, over  persons  working  in 
the  mine,  for  the  purpose  of  car- 
rying on  the  mining  operations 
without    danger,    does    not    make 


"sinkers"  employed  by  indepen- 
dent contractors  to  sink  a  shaft 
in  the  mine,  "workmen"  in  the 
employ  of  the  owners,  within  the 
meaning  of  the  English  Employ- 
ers' Liability  Act,  so  as  to  make 
the  owners  liable  for  injuries  to 
the  sinkers.  Marrow  v.  Flimby, 
etc.,  Co.  (1898),  2  Q.  B.  588. 

'^  East  Line,  etc.,  R.  v.  Cul- 
berson (1888),  72  Tex.  375;  10 
S.  W.  706;  13  Am.  St.  Rep.  805; 
3  L.  R.  A.  567. 

^*  Sweeney  v.  Boston,  etc.,  R. 
(1878).  128  Mass.  5;  1  Amer.  & 
Eng.  R.  Cas.  138.  "While  in  the 
majority  of  cases  in  which  the 
question.  Who  are  independent 
contractors?  is  involved,  the  ulfi- 
m-itc  inquiry  is  the  liability  for 
some  act  of  negligence  on  the 
part  of  the  contractor  or  his 
servant,    it    should  be   noted   that 


employer's  liability  to  contractors  and  servants.     323 

Sec.  206.     Liability  as  to  Condition  of  Premises. 

In  almost  every  case  where  a  proprietor  engages  an  in- 
cle])enclent  contractor  to  do  work  upon  his  premises,  there 
is  the  further  implication  that  if  the  contractor  brings  third 
persons,  his  own  employees,  his  partners  or  assistants,  to 
help  him  in  executing  the  contract,  such  persons  are  pre- 
sumably upon  the  premises  by  the  invitation  of  the  owners, 
and  he  owes  them  the  same  measure  of  care,  to  the  end  of 
promoting-  their  safety,  that  he  owes  to  the  contractor  him- 
self and  this  though  no  contractual  relation  exists  between 
himself  and  them.  But  the  cases  are  not  uniform.-*^  The 
owner  can  not  be  held  liable  to  an  employee  of  a  subcon- 
tractor for  failure  to  furnish  personally  a  copy  of  the  plans, 


the  question  also  arises  in  con- 
nection witii  an  inquiry  into  the 
liability  to  the  contractor's  serv- 
ant for  negligence  on  the  part  of 
the  principal  or  his  employee,  in 
which  case  it  becomes  a  branch 
of  the  question  as  to  which  of  two 
parties  is  to  be  deemed  the  master 
of  the  servant  of  one  of  them 
and  of  the  question  when  servants 
of  the  principal  employer  and 
(of)  the  contractor  are  to  be 
deemed  fellow-servants."  Note  to 
Knicely  v.  R.  Co.  (1908,  W.  Va.), 
17  L.  R.  A.  (N.  S.),  371. 

™  John  Spry,  etc.,  Co.  v.  Duggan 
(189S),  87  Ills.  App.  394;  Web- 
ster, etc.,  Co.  V.  Mulvanny  (1897), 
68  Ills.  App.  607;  168  Ills.  311; 
48  N.  E.  168;  Liebold  v.  Green 
(1897),  69  Ills.  App.  527;  Ma.on 
v.  Tower,  etc.,  Co.  (1895),  83 
Hun  (N.  Y.),  479;  32  N.  Y.  Supp. 
36;  Drenncn  v.  Grady  (1897),  167 
Mass.  415;   45   N.   E.   741;    S.xm- 

UELSON      V.     ClE\'EL.\ND,     ETC.,     Co. 


(1882),  49  Mich.  164;  13  N.  W. 
499;  43  Amer.  Rep.  456;  Powers 
v.  Harlow  (1884),  53  Mich.  507; 
51  Amer.  Rep.  154;  Evansville, 
ETC.,  R.  V.  Griffin  (1885),  100 
Ind.  221;  50  Amer.  Rep.  783; 
Welch  v.  McAllister  (1884),  15 
Mo.  App.  492;  Bennett  v.  Louis- 
ville, etc..  R.  (1880),  102  U.  S. 
577;  Indemaur  v.  Dames  (1866), 
L.  R.,  1  C.  P.  274;  Heaven  v. 
Pender  (1883),  L.  R..  11  Q.  B. 
503.  "On  the  other  hand,  the 
servant  of  the  contractor  must  be 
deemed  to  be  upon  the  premises 
of  the  proprietor  by  his  invita- 
tion, express  or  implied ;  and. 
therefore,  he  owes  him  the  same 
duty  of  guarding  him  against  the 
consequences  of  hidden  dangers 
on  the  premises,  that  a  proprietor 
would  in  any  case  owe  to  a  guest, 
a  customer,  or  other  person  com- 
ing by  invitation  upon  his  prem- 
ises." Thomps.  Neg..  Sees.  680, 
979. 


324       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

etc.,  as  approved  by  him.  That  duty  devolves  on  the  con- 
tractor.2i  Recovery  was  denied  in  a  case  where  a  bridge 
gave  way  under  a  train,  while  it  was  being  constructed, 
resulting  in  the  death  of  a  servant  of  the  contractor  con- 
structing the  bridge. ^^  Where  the  owner  of  a  building 
contracts  with  a  builder  to  re-arrange  the  buildirtg  accord- 
ing to  certain  plans,  and  while  he  is  in  possession,  the 
plaintiff,  in  the  employ  of  a  company  doing  some  electric 
work  in  the  building,  falls  through  a  hole  in  the  floor 
which  is  concealed  by  rubbish,  the  owner  is  held  not  re- 
sponsible for  the  resulting  injury.^^  Where  the  owner  of 
a  building  damaged  by  fire  employed  a  contractor  to  make 
repairs,  he  was  held  not  liable  for  injuries  to  his  contrac- 
tor's servants,  due  to  his  unfamiliarity  with  its  interior 
arrangement.^"*     Where  a  servant  of  a  contractor  engaged 


=*Hawke  v.  Brown  (1898),  50 
N.  Y.  Supp.  1032.  Circumstances 
under  which  a  defect  in  the  de- 
sign of  a  steam  plant  in  failing 
to  provide  for  a  drip  or  trap  to 
allow  the  escape  of  water  formed 
by  the  condensation  of  steam,  did 
not  render  the  owner  liable  for 
injuries  to  an  employee  of  a  sub- 
contractor who  was  hit  by  the 
cap  of  a  steam  pipe  which  was 
blown  ofif.  James  v.  Philadelphia 
Traction  Co.  (1898),  185  Penn. 
St.  75;  39  Atl  889. 

*^BiBB  V.  Norfolk,  etc.,  R. 
(1891),  87  Va.  711;  14  S.  E.  163; 
47  Amer.  &  Eng.  Ry.  Cas.  651. 
An  action  for  injuries  received  by 
the  giving  way  of  the  floor  of  a 
building  which  the  plaintiff's 
employer  (an  independent  con- 
tractor) was  taking  down,  was 
held  to  have  been  properly  dis- 
missed,    although     the     plaintiff's 


counsel  offered  to  prove  that  the 
defendant  knew  of  the  contractor's 
incompetency.  Schipp  v.  Pabst 
Brewing  Co.  (1896),  64  Minn. 
22;  66  N.  W.  3. 

^-''Hogan  V.  Arbuckle  (1902),  73 
App.  Div.  (N.  Y.),  591;  11  N. 
Y.  Supp.  22,  following  Murphy  v. 
Altman  (1898),  28  App.  Div.  (N. 
Y.),  472;  51  N.  Y.  Supp.  106. 

=^  Butler  V.  Lewman  (1902),  115 
Ga.  752;  42  S.  E.  98,  also  holding 
that  one  contracting  for  the  repair 
or  tearing  down  of  a  building 
destroyed  by  fire  is  under  the 
duty  of  guarding  the  servant  of 
an  independent  contractor  against 
the  danger  of  his  employment. 
The  owner  of  premises  who  had 
contracted  for  the  erection  of  a 
building  thereon,  was  held  not 
responsible  where  a  wall  fell  on 
the  servant  of  a  person  who  had 
taken   a    subcontract    for    excava- 


employer's  liability  to  contractors  and  servants.     325 

in  sinking  an  airshaft  in  a  mine  was  injured  by  an  explo- 
sion of  gas,  the  mine-owner  has  been  held  not  liable.-^ 
The  licensees  of  a  mine  contracting  with  a  third  person  to 
mine  the  ore  and  divide  the  products,  were  held  obligated 
to  see  that  the  mine  was  in  a  reasonably  safe  condition.^" 
A  statute  requiring  the  contractors  or  owners  of  a  building 
in  course  of  construction  to  enclose  the  openings  in  each 
floor  on  which  a  hoisting  apparatus  is  operated,  places  this 
duty  on  the  owner  of  the  building  as  to  an  employee  of 
an  independent  contractor  as  well  as  on  the  contractor, 
and  this  though  all  the  work  on  the  building  is  being  done 
by  independent  contractors,  and  the  hoisting  machine  is 
installed  by  a  company  which  is  paid  by  the  contractors.^^ 


tion  work.  Hale  v.  Johnson 
(1875),  80  Ills.  185;  14  Am.  Neg. 
Cas.  417,  n.  Where  the  roof  of 
a  drift,  which  was  left  unsup- 
ported, fell  on  a  laborer  in  the 
employ  of  a  person  operating 
the  mine  under  a  contract,  the 
owner's  liability  was  denied. 
Smith  V.  Belshaw  (1891),  89  Cal. 
427;  26  Pac.  834.  Cf.,  Samuel- 
son  V.  Cleveland,  etc.,  Co.  (1882), 
49  Mich.  164;  13  N.  W.  499;  43 
Amer.  Rep.  456. 

"*  Welsh  V.  Lehigh,  etc.,  Co. 
(1886,  Penn.),  5  Atl.  48;  Welsh 
V.  Parrish  (1892),  148  Penn.  599; 
24  Atl.  86.  A  railway  company 
was  held  not  liable  where  the 
servant  of  the  contractor  for  the 
construction  of  a  railway  was  in- 
jured through  breathing  the  ex- 
halations from  a  poisonous  mix- 
ture which  the  contractor  had 
applied  to  some  timber  to  prevent 
its  decaying.  West  v.  St.  Louis, 
etc.,  R.   (1872),  63  Ills.  545. 


="Rice  V.  Smith  (1902),  171  Mo. 
331;  71  S.  W.  123.  See,  as  to 
licensees,  generally,  ante,  Sees. 
38g,  91,  126-134.  A  mine  owner 
was  held  not  responsible  where 
the  mouth  of  a  pass  leading  from 
a  higher  to  a  lower  level  in  a 
mine  was  left  uncovered  and  un- 
lighted  through  the  negligence  of 
the  person  operating  the  mine 
under  an  independent  contract. 
Martin  v.  Sunlight,  etc.,  Co. 
(1896),  17  New  South  Wales  L. 
R.  364. 

^  Rooney  v.  Brogan,  etc.,  Co. 
(1905),  95  N.  Y.  Supp.  1.  In 
another  New  York  case,  defend- 
ant owned  a  marble  sawing  yard. 
He  let  some  of  his  saws  to  X., 
who  conducted  an  independent 
business  in  defendant's  yard. 
Decedent,  who  was  in  X.'s  em- 
ploy, together  with  some  co- 
servants,  undertook  to  move  some 
marble  slabs  belonging  to  X.  In 
doing     so,     a     slab     was     swung 


326       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

The  rule  is  the  same  between  contractor  and  subcon- 
tractor as  between  owner  and  contractor,  and  such  con- 
tractor will  be  liable  to  the  servant  of  a  subcontractor  for 
injuries  due  to  a  failure  to  exercise  a  reasonable  degree  of 
care  as  to  the  condition  of  the  premises  upon  which  he  is 
employed.  ^^ 

Sec.  207.     Same,  Employer  Controlling  or  Directing  Work. 

In  an  early  case  the  defendants  were  held  liable  on  the 
following  facts :  Defendants,  in  order  to  remove  some  flour 
in  barrels  from  their  warehouse,  employed  W.,  a  master 
porter,  who  used  his  own  tackle  and  brought  and  paid  his 
own  men;  W.  employed  T.,  a  master  carter,  to  carry  the 
barrels  away ;  T.  sent  his  own  carts  and  his  own  men,  among 
them  the  plaintiff  who  was  injured  by  having  a  barrel  fall 
on  him  in  consequence  of  part  of  W.'s  tackle  falling  while 
being  used  by  W.'s  men.  Recovery  was  apparerntly  al- 
lowed on  the  theory  that  the  person  engaged  to  do  the 
work,  and  his  servants,  were  deemed  servants  of  the  de- 
fendants while  the  work  was   in  progress  and  under  his 


against  a  piece  of  marble  belong- 
ing to  the  defendant,  knocking  it 
down  on  the  decedent  and  kiUing 
him.  The  defendant  was  held  not 
liable,  as  the  piece  of  marble  be- 
longing to  him  which  fell  on 
decedent,  was  held  to  have  been 
lawfully  in  its  place  and  secure 
from  ordinary  interference  and 
further  as  the  proximate  cause  of 
decedent's  death  was  the  negli- 
gence of  his  co-employee.  Con- 
nelly V.  Rist  (1897),  45  N.  Y. 
Supp.  321. 

^Norman  v.   Dowd    (1903),   83 
N.  Y.  Supp.  693.     The  negligence 


for  which  the  contractor  will  be 

liable  must  be  some  act  of  per- 
sonal negligence  on  his  part 
which  caused  the  accident,  inde- 
pendently of  all  other  causes. 
Thus,  in  a  case  of  injuries  to  an 
employee  of  a  subcontractor  by 
the  fall  of  a  building,  it  was  held 
competent  to  show  knowledge  of 
the  dangerous  condition  by  the 
coiitractor  long  before  the  hap- 
pening of  the  accident.  Nelson 
V.  Young  (1904),  91  App.  Div. 
(N.  Y.),  457;  87  N.  Y.  Supp.  69; 
affirmed  180  N.  Y.  523;  72  N.  E. 
1146. 


employer's  liability  to  contractors  and  servants.     327 

control.-''  Where  a  mining  company,  contracting  for  the 
removal  of  ore,  reserves  to  itself  such  arrangements  as 
are  necessary  for  the  protection  of  workmen,  it  is  liable 
for  such  injuries  as  happen  to  employees  of  the  contractor 
without  the  fault  of  the  employees.^'' 

A  proprietor  who  personally  interferes  in  the  work  is 
responsible  for  any  injury  to  a  servant  of  the  contractor 
occasioned  by  such  interference  whether  such  contractor 
is  independent  or  not."'^  If  the  owners  of  a  building  em- 
ploy a  contractor  to  alter  and  improve  it  and  forbids  the 
contractor  to  take  down  a  dangerous  wall  where  he  is  to 
build  a  stack  near  it,  and  the  dangerous  character  of  the 
wall  is  open  and  obvious,  and  in  consequence  of  the  neces- 
sary digging  by  the  contractor,  to  obtain  a  foundation  for 
the  stack,  the  wall  falls  and  injures  a  servant  of  the  sub- 
contractor, the  proprietor  will  1)l'  liable ;  because  in  such 
case  he  would  have  been  liable,  as  for  a  nuisance,  if  it  had 
fallen  outward  and  injured  a  stranger  on  the  sidewalk.^- 


*Randleson  v.  Murray  (1838), 
8  Ad.  &  El.  109.  Cf.,  Milligan 
V.  Wedge  (1840),  12  Ad.  &  EI. 
737;  criticised  in  Murphy  v. 
Caralli  (1864),  3  Hurst.,  etc.,  462. 
If  the  employer  (a  vessel  master) 
retains  control  of  the  work  in 
whole  or  in  part,  and  through  his 
interference  or  orders  an  injury 
happens  to  a  servant  of  the  in- 
dependent contractor  (a  master 
stevedore),  or  to  a  third  party, 
tlie  employer  is  liable.  Morrcll 
V.  Rheinfrank  (1885),  24  Fed.  94; 
Kilroy  v.  Delaware,  etc.,  Co. 
(1890).  121  N.  Y.  22;  24  N.  E. 
192. 

"  Lake  Superior,  etc..  Co.  v. 
Erickson  (1878),  39  Mich.  492; 
33   Amer.   Rep.   423.     Cf.,   Callan 


V.  Pugh  (1900),  54  App.  Div.  (N. 
Y.),  545;  66  N.  Y.  Supp.  1118. 

='Faren  v.  Sellers  (1887),.  39 
La.  Ann.  1011;  3  So.  363;  4 
Amer.  St.  Rep.  256.  A  corpora- 
tion with  which  a  person  contracts 
to  do  work  at  a  specified  price 
per  piece,  using  the  corporation's 
machinery  and  power,  the  con- 
tractor employing  and  paying  the 
hands,  is  liable  as  employer  for 
an  injury  to  one  of  the  hands  so 
employed  where  it  exercises  con- 
trol over  the  hands,  or  the  manner 
in  which  the  work  is  done,  or 
the  means  by  which  it  is  done. 
Wallace  v.  Southern,  etc.,  Co. 
(1897).  91  Tex.  18;  40  S.  W.  399. 

'^  Fender  v.  Raggo  (1896).  178 
Penn.  St  337;  35  Atl.  1115. 


328       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  208.     Same,  Safety  of  Appliances. 

Where  the  owner  of  a  building  caused  a  stage  to  be 
erected  for  use  by  one  who  had  contracted  with  him  to 
supply  the  building  with  fire  extinguishing  apparatus,  and 
the  staging  was  constructed  in  a  negligent  manner  in  con- 
sequence of  which  an  employee  of  the  contractor  was 
killed,  the  owner  was  liable  for  the  employe's  death  al- 
though no  contractual  relation  existed  between  them.^^  An 
employee,  of  a  contractor  employed  by  the  owner  of  a 
sawmill  to  do  the  manual  work  required  to  manufacture 
blocks  into  shingles,  while  the  owner  furnishes  and  operates 
the  machinery  for  the  purpose,  may  recover  of  the  owner 
for  injuries  caused  by  a  failure  to  furnish  reasonably  safe 
machinery,  since  the  relation  of  master  and  servant  exists 
between  such  employee  and  the  owner.^^  A  manufacturer 
contracting  with  a  third  person  for  the  manufacture  of  his 
product  and  furnishing  a  dangerous  machine  without  in- 
structions, was  held  liable  for  injury  to  an  employee  of 
such  third  person.^^     One  who  contracts  for  the  sinking  of 


^  Bright  v.  Barnett,  etc.,  Co. 
(1894),  88  Wise.  299;  60  N.  W. 
418;  26  L.  R.  A.  524.  The  owner 
of  a  building  in  which  there  is  a 
dumb  waiter  operated  by  hand, 
owes  no  duty  of  inspection  to  one 
who  is  not  his  servant,  but  who 
is  employed  by  the  janitor  of  the 
building,  and  who  is  not  an  em- 
ployee of  the  owner.  Sellers  v. 
Dempsey  (1898),  49  N.  Y.  Supp. 
765 ;  a  decision  which  is  declared 
by  Judge  Tliompson  to  be  un- 
sound. Thomps.  Neg.,  p.  899.  In 
a  Texas  case,  a  proprietor  was 
held  not  liable  for  injuries  to  the 
servant  of  his  contractor  l)y  rea- 
son of  the  defective  condition  of 


a  derrick  furnished  by  him  in  the 
absence  of  proof  that  it  was  in- 
herently dangerous.  Southern  Oil 
Co.  V.  Church  (1903),  32  Tex. 
Civ.  App.  325;  74  S.  W.  797;  75 
S.  W.  817;  16  Am.  Neg.  R.  611,  n. 

'*Niemeyer  v.  Weyerhauser 
(1895),  95  Iowa,  497;  64  N.  W. 
416;  contra,  Reier  v.  Detroit, 
ETC.,  Works  (1896),  109  Mich. 
244;  67  N.  W.  120;  16  Am.  Neg. 
Cas.  30,  n. ;  4  Amer.  &  Eng.  Corp. 
Cas.  (N.  S.),  459,  which  see.  Cf., 
Anderson  Bros.  Co.  v.  Burns 
( ),  22  Ohio  C.  C.  437. 

*"  Jacobs  v.  Fuller,  etc.,  Co. 
(1902),  67  Ohio  St.  70;  65  N.  E. 
617;    65    L.    R.    A.    833;    13   Am. 


employer's  liability  to  contractors  Axn  ?;ervants.     329 


a  shaft  on  his  property,  agreeing  to  furnish  the  necessary 
tools,  including  a  hoist,  while  the  other  party  is  to  furnish 
the  labor,  is  not  answerable  to  laborers  for  the  continued 
safety  of  the  machinery  furnished ;  so  that  no  recovery  can 
be  had  against  him  for  injuries  to  an  employee  through 
the  breaking  of  a  rope  used  on  the  hoist  which  is  sufficient, 
when  furnished,  but  is  allowed  by  the  contractor  to  become 
defective.^*'*  A  shipowner  who  undertook  to  furnish  and 
put  in  place  a  span  to  be  used  in  connection  with  the  dis- 
charge of  a  cargo  by  the  contractor,  was  required  to  exer- 
cise reasonable  care  to  furnish  one  fit  for  the  work  for 
which  it  was  to  be  used,  and  was  liable  to  a  servant  of  the 
contractor  for  failure  to  exercise  such  care.-"^^  An  employe 
of  a  coal  company,  who  has  an  arrangement  with  his  em- 
ployer to  ride  upon  empty  cars  while  they  are  being 
switched,  for  the  purpose  of  loading  them  with  coal,  and 
to  apply  brakes  to  stop  them  at  the  right  place,  it  is  held, 
has  no  right  of  action  against  a  railroad  company  for  an 
injury  caused  by  a  defective  brake  upon  a  car  furnished 
by   the  company,   where  the  company  had   no  knowledge 


Neg.  R.  208;  16  Id.  611,  n.  In 
Kentucky  it  was  held  that  a  per- 
son owning  and  operating  .  ma- 
chinery is  required  to  use  reason- 
able care  to  make  it  safe  for  the 
protection  of  persons  working  in 
its  vicinity,  regardless  of  whether 
the  person  is  an  employee  of  the 
owner  or  is  at  work  under  an 
independent  contractor.  Kentucky, 
etc.,  Co.  V.  Bryan  (1905),  27  Ky. 
L.  R.  136;  84  S.  W.  537. 

'"Central  Coal  &  Iron  Co.  v. 
Grider's  Admr.  (1903),  115  Ky. 
745;  74  S.  W.  1058;  65  L.  R.  A. 
455;  16  Am.  Neg.  R.  610,  n.  An 
employer  who  furnishes  a  con- 
tractor with  a  safe  appliance  will 


not  be  liable  for  injuries  to  the 
servants  of  the  contractor  result- 
ing from  defects  due  to  wear  in- 
cident to  its  use.  Central,  etc., 
Co.  V.  Bailey  (1903).  28  Ky.  L. 
R.  873;  76  S.  W.  842. 

*'  Mason  v.  Tower  Hill  Co. 
(1895),  83  Hun  (N.  Y.),  479;  32 
N.  Y.  Supp.  36.  Although  the 
relation  of  master  and  servant 
may  not  exist  between  the  ship 
owner  or  charterer  and  the  serv- 
ants of  the  stevedore,  yet  this 
does  not  negative  the  implication 
of  law  that  such  owner  or  char- 
terer, inviting  the  stevedore's 
servarts  to  come  upon  his  ship 
and    to    do    work    thereon    with 


330       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


of  the  arrangement.^'^  One  on  whose  building  a  roof  was 
being  raised  was  held  to  owe  no  duty  to  barricade  the  side- 
walk or  give  warning  to  protect  against  falling  brick,  one 
who  had  previously  been  employed  on  the  work  in  progress 
and  therefore  occupied  a  different  position  from  that  of  a 
passerby  using  the  sidewalk  in  the  usual  way. 


39 


Sec.  209.     Same,  Employer  Accepting  Work. 

A  religious  society's  agents  contracted  with  plaintiff's 
employer  to  do  certain  painting  for  a  gross  sum  and  not 
subject  to  the  society's  control.  The  defendant  society 
undertook  to  erect  and  remove  a  staging  to  be  used  by 
plaintiff's  employer,  and  through  its  agents  selected  and 
employed  a  carpenter  for  a  gross  sum  and  not  subject  to 
its  control  to  erect  and  remove  the  scaffold  and  to 
furnish  the  material   and   labor  therefor.      The   plaintiff's 


appliances  furnished  by  him,  is 
bound  to  see  that  the  vessel  and 
appliances  are  reasonably  safe  for 
the  purposes  indicated ;  he  owes 
this  duty  to  the  master  stevedore 
and  he  owes  a  commensurate  duty 
to  such  stevedore's  servants. 
Thomps.  Neg.,  Sec.  636,  citing 
The  Rheola  (1884),  19  Fed.  926. 
^  Broslin  v.  Kansas  City,  etc., 
R.  (1897),  114  Ala.  398;  21  So. 
475;  9  Amer.  &  Eng.  Ry.  Cas. 
CN.  S.).  99.  "The  company  had 
knowledge  that  the  cars  were 
being  used  by  the  coal  company 
and  that  the  coal  company  was 
necessarily  using  them  through 
the  instrumentality  of  its  em- 
ploj'ees,  and  that  was  enough  to 
raise  a  duty  towards  the  em- 
ployees of  the  coal  company  to 
see     that    they    were     reasonably 


safe  for  the  purposes  for  which 
they  were  supplied."  Thomps. 
Neg.,  p.  899,  note  156.  Where 
a  street  railway  company  entered 
into  a  contract  with  another  com- 
pany, by  which  the  latter  was  en- 
titled to  use  of  the  poles  of  the 
former,  it  was  not  liable  for  an 
accident  to  an  employee  of  the 
latter  company  caused  by  ihe 
])reaking  of  an  unsafe  pole,  where 
the  company  furnishing  the  pol>= 
had  no  knowledge  of  the  employ- 
ment in  the  service  of  which  he 
was  engaged.  San  Antonio,  etc., 
Co.  v.  Dixon  (1897),  17  Tex. 
Civ.  App.  320;  42  S.  W.  1009, 
criticised  as  unsound  in  Thomps. 
Neg.,  900,  note  156. 

^  Smith  v.  H  u  m  p  h  r  e  y  v  il  1  e 
(1907,  Tex.  Civ.  App.),  104  S. 
W.  495. 


employer's  llvbility  to  contractors  and  servants.     331 

employer  did  not  and  could  not  know  from  the  appearance 
or  from  examining-  the  staging  whether  it  was  or  was  not 
strong  enough  for  his  workmen  to  go  upon.  The  staging, 
being  defective,  fell,  injuring  ])laintiff.  There  was  no 
evidence  that  the  defendant  society  or  its  agents  took  any 
part  in  erecting  the  staging  or  in  directing  its  erection 
beyond  making  the  contract  with  the  carpenter,  or  that 
they  were  guilty  of  any  negligence  in  employing  the  car- 
penter to  erect  it.  But  the  society  was  held  liable  to  the 
plaintiff  by  reason  of  having  accepted  the  staging  and  in- 
duced the  carpenter's  workmen  to  come  thereon;  but  that 
the  agents  were  not  jointly  liable  with  the  society.**^ 

Sec.  210.     Same,   Competency  of  Co-workers. 

A  master  owes  to  his  servants  the  duty  of  exercising 
ordinary  and  reasonable  care  to  the  end  that  the  fellow- 
servants  with  whom  he  is  engaged  to  work  are  fit,  competent 
and  sober  men ;  but  the  proprietor  of  a  building  who  employs 
an  independent  contractor  to  tear  it  down  does  not  be- 
come liable  to  a  servant  of  such  contractor  for  an  injury 
received  through  the  contractor's  incompetency,  although 
such  incompetency  may  have  been  known  to  the  proprietor 
at  the   time  of  letting  the  contract.^^     The  decisions  are 


"Mulchey  v.  Methodist,  etc., 
Society  (1878),  125  Mass.  487; 
6  Reporter,  756;  15  Am.  Neg. 
Cas.  661,  n.  A  railroad  company 
entered  into  a  contract  with  X.  to 
do  the  mason  work  of  a  round- 
house, the  contractor  to  build  his 
own  scaffolding,  the  railroad  com- 
pan}'  furnishing  the  material; 
the  master  mechanic  of  the  com- 
pany arranged  with  the  contractor 
that  the  railroad  company  should 
build    the    scaffold    for    the    car- 


penters and  that  after  they  were 
done  using  it,  the  contractor 
might  use  it  if  he  wished,  but  on 
his  own  responsibility  as  to  its 
safety  for  his  work;  while  the 
contractor  was  so  using  it,  it  fell, 
hurting  one  of  his  employees;  the 
railroad  company  was  held  not 
liable  for  the  injury.  Larock  v. 
Ogdensburgh,  etc.,  R.  (1882),  26 
Hun  (N.  Y.),  382. 

"  Schipp  V.   Pabst  Brewing  Co. 
(1896),  64  Minn.  22;  66  N.  W.  3. 


332       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


not  uniform  as  to  the  liability  of  an  employer  for  the  incom- 
petency or  negligence  of  his  own  servants  resulting  in  injury 
to  the  servants  of  the  independent  contractor.  Thus,  a  dock- 
owner  who  let  to  a  stevedore  an  engine  and  an  engineer  to 
run  it,  has  been  held  liable  for  an  injury  to  such  stevedore's 
employee  through  the  engineer's  negligence.^^  In  a  lead- 
ing Georgia  case  a  track-layer  in  the  contractor's  employ 
was  held  entitled  to  recover  from  the  railroad  company 
for  injuries  received  while  he  was  traveling  as  a  passenger 
on  a  train  operated  by  the  contractor.'*^  The  owner  of  a 
building  in  exclusive  possession  of  an  elevator  therein,  is 
responsible  for  the  negligence  of  the  operator  in  injuring 
the  servant  of  a  contractor  who  has  undertaken  to  paint 
the  shaft,  when  the  work  is  being  done  at  the  bottom  of 
the  shaft  below  the  car,  although  prior  thereto  the  car  had 
been  used  by  the  contractor  as  a  movable  staging  for  the 
use  of  his  men."*^  It  is  the  duty  of  the  operatives  of  trains 
to  exercise  due  care  to  avoid  injury  to  employees  of  con- 
tractors who  are  lawfully  on  the  railroad  premises.^^     The 


*'Coyle  V.  Pierrepont  (1885), 
37  Hun  (N.  Y.).  379.  But  a 
ship  owner  is  not  liable  for  in- 
juries received  by  a  servant  of  a 
stevedore  through  the  negligence 
of  his  fellow-servants  in  failing 
to  replace  a  grating  over  a  hatch- 
way, or  in  exposing  a  trimming 
hatch  by  the  removal  of  dunnage. 
Dwyer  v.  National  Steamship  Co. 
(1880),  17  Blatchf.  472;  4  Fed. 
493;  In  re  the  Wm.  F.  Babcock 
(1887),  31  Fed.  418.  Cf.,  Riley 
v.  State  Line  Steamship  Co. 
(1877),  29  La.  Ann.  791;  29 
Amer.  Rep.  349. 

"Macon,  etc.,  R.  v.  Mayes 
(1873),  49  Ga.  355;  15  Amer.  Rep. 
678. 


*^  Perry  v.  Payne  (1907),  217 
Penn.  252;  66  Atl.  553;  11  L.  R. 
A.    (N.  S.),  1173. 

"  Sheltrawn  v.  Michigan,  etc., 
R.  (1901),  128  Mich.  669;  87  N. 
W.  893.  It  is  the  duty  of  the 
servants  of  a  switch  company 
operating  trains  in  its  yards  to 
keep  a  lookout  for  car  repairers 
who  are  permitted  by  the  switch 
company  to  repair  the  cars  of 
their  employers  in  the  switch 
yard.  Kentucky,  etc.,  Co.  v. 
Sydor  (1904).  119  Ky.  18;  82  S. 
W.  989;  68  L.  R.  A.  183.  It  has 
been  held  that  a  person  at  work 
on  an  elevated  railroad  structure 
as  an  employee  of  a  subcontractor 
thereon  was   a   licensee  to   whom 


employer's  liability  to  contractors  and  servants.     333 

owner  of  premises  upon  which  there  is  a  private  railroad 
track  owes  to  one  employed  by  a  contractor  on  his  premises 
near  the  track  the  duty  to  exercise  ordinary  care  to  avoid 
injury  to  him  from  cars  passing  on  the  track. ^^' 

Sec.  211.     Contributory  Negligence. 

The  duty  to  use  reasonable  care  is  reciprocal  and  the 
servant  of  a  contractor  can  not  recover  for  injuries  the 
result  of  an  accident  to  which  his  negligence  contributed, 
e.  g.,  where  the  servant  of  an  ice  company,  employed  to 
ice  cars,  ventured  onto  the  roof  of  a  car  to  be  iced  at  a 
time  when  it  was  slippery  with  ice,  and  it  was  held  he 
assumed  the  danger  of  an  obvious  risk.'*^  An  employee  of 
a  contractor  may  become  a  trespasser  by  venturing  on 
premises  to  which  he  has  not  been  invited,  as  where  a 
painter  on  a  freight  depot,  without  any  invitation  from  the 
railroad  company,  attempted  to  cross  between  the  parts  of 
a  broken  train  and  was  injured  by  their  suddenly  coming 
too-ether.^'^ 


'b 


the  elevated  railroad  compan}-  uniforml}'  recurring  occasions 
owed  the  duty  of  using  reason-  given  up  to  the  business  of 
able  care  to  prevent  his  being  in-  switching  cars,  by  a  railroad  com- 
jured  from  exposure  to  unusual  pany  defendant,  and  who  was  on 
dangers  not  known  to  him  that  such  occasions  directed  to  cease 
might  be  caused  by  the  negligent  work  until  the  switching  opera- 
running  of  the  defendant's  surface  tions  were  completed,  and  who, 
cars  beneath  the  platform  on  notwithstanding  notice  that  switch- 
which  he  was  at  work.  Wagner  ing  was  in  progress,  voluntarily 
V.  Boston,  etc.,  R.  (1905),  188  assumed  a  position  of  danger, 
Mass.  437;  74  N.  E.  919.  where    he    was    injured    by    being 

*"  Sack    v.    St.    Louis    Car    Co.  pinched     between     a     car,     which 

(1905),   112  Mo.  App.  476;  87  S.  was  suddenly  moved,  and  a  bum- 

W.  79.  per.    Johnson  v.  Minneapolis,  etc., 

''Baker  v.  Louisville,  etc.,  Co.  R.   (1904),  140  Mich.  292;  103  N. 

(1901),   106  Tenn.  490;  61   S.  W.  W.  594. 

1029;  S3  L.  R.  A.  474.     Contribu-  '"Furey  v.    New   York,   etc.,   R. 

tory  negligence  was  imputed  to  a  (1902),  67   N.  J.   L.  270;   51   Atl. 

servant  of  a  lime  company  work-  505. 
ing    in    a   yard    which    was    upon 


CHAPTER    IX. 


Contractor's    Liability — Subcontractors. 


SECTION 

215.  Contractors'  liability,  gener- 

ally. 

216.  Same — Relation   of  parties. 

217.  Same — Statutory  right. 

218.  Same — Negligent      perform- 

ance of  work. 

219.  Same — Following     defective 

plans,  etc. 

220.  Same — Acts  of  employer. 

221.  Same — Injury  to  wrongdoer. 

222.  Same — Injury    to    his    own 

servant. 

223.  Same — Between    contractors 

and  their  servants. 


SECTION 

224.  Same — Injury     to     vendee's 

servant. 

225.  Same — Condition      of      em- 

ployer's premises. 

226.  Same — Contractor's     legal 

representative. 
227.'     Same — Injury  to  employer's 
tenant. 

228.  Same — Acceptance    by     em- 

ployer. 

229.  Same — Indemnity      to      em- 

ployer. 

230.  Subcontractors. 


Sec.  215.     Contractor's  Liability,  Generally. 

The  contractor,  like  any  one  else,  is  liable  for  the  conse- 
quences of  his  own  negligent  acts  without  reference  to  the 
doctrine  of  independent  contractors.^  He  must  answer  for 
his  own  wrongs  and  those  of  his  servants  in  the  course  of 
the  work.^  He  is  especially  liable  for  his  own  acts  when 
he  as.sumes  this  liability  in  his  contract  of  employment.^ 
Where  a  contractor  under  the  charter  of  a  turnpike  com- 


'  Schutte  V.  United,  etc.,  Co. 
(1902),  68  N.  J.  L.  435;  53  Atl. 
204;  16  Am.  Neg.  R.  614,  n.; 
Bill  V.  New  York,  etc.,  Co.  (1901), 
69  N.  Y.  Supp.  989;  Straus  v. 
Buchanan  (1904),  89  N.  Y.  Supp. 
226. 
334 


'Holt  V.  Wheatly  (1874),  51 
Ala.  569:  Shaw  v.  Crocker  (1871), 
42  Cal.  435. 

*  Chicago,  etc.,  Co.  v.  LaMantia 
(1904),  112  Ills.  App.  43. 


CONTRACTOR 'S    LIABILITY — SUBCONTRACTORS. 


335 


pany  entered  another's  enclosed  land  and  took  materials 
therefrom  for  the  construction  of  the  highway,  and  by 
reason  of  the  fence  on  the  premises  being  left  open,  cattle 
entered  and  destroyed  the  crop  thereon  the  contractor  is 
the  proper  party  defendant  in  an  action  for  the  damages."* 
Where  parties  enter  into  a  contract  which  is  in  itself 
lawful,  and  the  contractor  in  carrying  on  his  work,  does 
anything  injurious  to  another  he  alone  is  responsible.^ 
Contractors  are  neither  entitled  to  tlie  benefits  conferred, 
nor  subject  to  the  burdens  imposed,  by  statutes  which,  upon 
a  reasonable  construction,  must  be  held  applicable  only  to 
servants.^      Several   cases   have   held   that    an    independent 


'Crawford  v.    Maxwell    (1842), 
3  Humph.  (Tenn.),  476. 

"Woodhill  V.  Great  Western 
Railroad  (1885).  4  U.  C.  C.  P. 
449.  In  an  action  apainst  a  con- 
tractor by  a  third  person  for  in- 
juries received  b}'  falling  into  a 
ditch  dug  by  the  defendant,  the 
jury  was  instructed  that  if  the 
defendant  had  control  of  the 
ditch  he  would  be  responsible  for 
any  negligence  connected  there- 
with, but  if  he  was  merely  en- 
gaged to  do  the  work  under  the 
superintendence  and  direction  of 
another  he  was  not  liable,  and 
this  was  held  correct  on  appeal. 
Jessup  V.  Sloneker  (1891),  142 
Penn.  St.  527 ;  21  Atl.  988.  When 
the  work  of  the  construction,  re- 
pair or  alteration  of  a  street  rail- 
way track  in  a  city's  streets  is 
authorized  by  law  and  excava- 
tions are  made  in  such  work 
which  are  to  be  kept  open  at 
night,  the  duty  is  incuml  ent  on 
those  performing  the  work  under 


a  contract  with  the  street  railway 
company  to  exercise  reasonable 
care  to  guard  such  excavations  to 
protect  those  using  the  streets. 
Fox  V.  Wm.  Wharton,  etc.,  Co. 
(1900.  N.  J.  L.),  7  Amer.  Neg. 
Rep.  467.  To  the  same  effect : 
Tatje  V.  Frawley  (1900.  La.),  27 
So.  339,  cited  in  note,  7  Amer. 
Neg.  Rep.  467. 

"Hardy  v.  Ryle  (1829),  4 
Mann.  &  R.  295;  Macfie  v.  Hutch- 
inson (1887).  12  Ont.  Pr.  Rep. 
167;  Ingram  v.  Barnes  (1857),  7 
El.  &  Bl.  115,  132.  Cf..  Sleeman 
v.  Barrett  (1864).  2  Hurls.  &  C. 
934.  An  independent  contractor 
cannot  be  considered  the  agent  or 
servant  of  the  person  employing 
him,  and  hence  the  principle  oT 
respondeat  superior  cannot  be  in- 
terposed for  the  contractor's  pro- 
tection in  a  suit  by  a  third  person 
injured  by  his  negligence.  Fish 
v.  Dodge  (1862).  m  Barb.  (N. 
Y.),  163. 


336       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

contractor  can  not  be  convicted  of  embezzlement  simply  as 
such.'^ 

Sec.  216.     Same,  Relation  of  Parties. 

In  New  York,  one  contracting  with  the  State  to  enlarge 
the  State's  canal  is  answerable  for  any  direct  injury  to  an 
individual  in  the  nature  of  a  trespass;  as  by  blasting  rock, 
whereby  a  person  lawfully  at  work  on  adjacent  premises, 
is  hurt.  The  contractor  can  not  justify  an  act  of  this  kind 
on  the  ground  that  he  was  the  State's  agent  and  proceeding 
under  the  immunity  of  public  authority,  for  he  was  not 
an  agent  but  was  an  independent  contractor.  But  it  is  held 
that  even  though  he  were  an  agent  of  the  State  it  would 
make  no  difference,  for  the  State  can  not  clotlie  its  agents 
with  immunity  in  the  exercise  of  acts  invasive  of  private 
right  without  formal  legislative  act.^  Mere  advertisers, 
who  are  licensed  to  go  onto  the  roof  of  a  building  to  place 
advertisements  upon  a  sign  which  is  a  fixture  on  the  build- 
ing and  which  does  not  belong  to  them  such  advertisers 
having  no  right  of  possession  of  any  part  of  the  building, 
are  not  liable  for  the  signs  I'dllin^-  from  the  building  in  a 
high  wind.^ 


'Regina  v.  Hall  (1875),  13  Cox 
C.  C.  49;  Regina  v.  Clifford 
(1878),  3  New  Zeal.  J.  R.  (N. 
S.),  1. 

'St.  Peter  v.  Denison  (1874), 
58  N.  Y.  416;  17  Amer.  Rep.  258. 
See,  also,  the  following  more  or 
less  analogous  English  cases : 
Ward  V.  Lee  (1857),  7  El.  &  Bl. 
426;  Clothier  v.  Web.ster  (1862), 
12  C.  B.  (N.  S.),  798;  Jones  v. 
Bird   (1822),  5  Barn.  &  Aid.  837. 

'Reynoujs  v.  Van  Beuren 
(1898),  155  N.  Y.  120;  49  N.  E. 


763;  42  L.  R.  A.  129.  A  con- 
tractor engaging  to  manufacture 
a  certain  article  who  constructed 
it  so  negligently  that  it  broke  and 
damaged  adjacent  property,  was 
held  liable  for  such  damages,  in, 
Erie  City,  etc..  Works  v.  Barber 
(1883),  102  Penn.  St.  156.  A 
livery  stable  keeper,  and  not  one 
who  hires  a  carriage,  horses  and 
driver  from  him  is  held,  in 
h'RERKER  V.  Nicholson  (1907),  41 
Colo.  12,  92  Pac.  224,  13  L.  R. 
A.   (N.  S.),  1122,  to  be  liable  for 


CONTRACTOR 's    LIABILITY — SUBCONTRACTORS. 


337 


Sec.  217.     Same,  Statutory  Right. 

A  corporation  authorized  by  statute  to  insure  and  also 
to  inspect  steam  boilers  and  stationary  engines  and  to  issue 
certificates  stating  their  maximum  working  pressure,  which 
certificates  should  be  accepted  by  the  city's  chief  inspector, 
was  held  liable  to  a  third  person  from  a  negligent  inspec- 
tion and  a  false  certificate.^" 

Sec.  218.     Same,  Negligent  Performance  of  Work. 

Where  an  injury  springs  from  the  negligent  manner  in 
which  the  contractor  has  executed  the  work,  and  not  from 
the  fact  of  the  work  being  wrongful  per  se,  the  contractor 
will  be  primarily  liable  and  it  is  immaterial  whether  he  be 
deemed  an  independent  contractor  or  a  servant.  ^^  W'here 
a  ditch  contractor  so  negligently  constructed  a  ditch  that 
instead  of  draining  water  off  the  plaintiff's  land,  it  carried 
water  onto  the  land,  the  contractor  is  liable  for  the  damages 
resulting  from  his  negligent  act.^- 


injuries  to  a  third  person  by  the 
negligence  of  the  driver,  where 
the  hirer  exercises  no  control 
over  the  latter  other  than  telling 
him  in  a  general  way  where  to  go. 
'"Bradley  v.  Hartford,  etc.,  In- 
surance Co.  (1883).  19  Fed.  246. 
An  English  statute  regulating  the 
construction  of  certain  public 
works  provided  a  special  mode 
of  assessing  damages  to  land ;  a 
contractor  of  the  public  board 
having  such  work  in  charge  was 
nevertheless  liable  to  pay  damages 
sustained  by  an  occupier,  in 
consequence  of  his  negligence  and 
want  of  skill.  Clothier  v.  Web- 
ster (1862),  12  C.  B.  (N.  S.),  790. 
Cf.,  Lawrence  v.  Great  Northern 
R.    ( ),    16   Q.    B.   643;    Brine 


V.  Great  Western  R.  (1862),  2 
Best.  &  S.  402;  Bartlett  v.  Baker 
(1864),  3  Hurls.  &  C  153;  34  L. 
J.  Exch.  8. 

"Kollock  V.  Madison  (1893), 
84  Wise.  458;  54  N.  W.  725. 
For  irrelevant  discussion  as  to 
whether  wrong-doer  was  servant 
or  independent  contractor,  see 
Charlock  v.  Freel  (1891).  125  N. 
Y.  357;  26  N.  E.  262. 

'=^Fromme  v.  Ide  (1891),  14  N. 
Y.  Supp.  802;  (1893),  23  N.  Y. 
Siipp.  56;  (1895),  144  N.  Y.  630; 
39  N.  E.  493.  Cf.,  Pasquini  v. 
Lowry  (1892),  63  Hun  (N.  Y.), 
632;  18  N.  Y.  Supp.  284;  Geer  v. 
Darrow  (1891),  61  Conn.  230;  23 
Atl.  1087. 


338       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  219.     Same,  Following  Defective  Plans,  etc. 

Wliere  the  contractor  follows  designs  and  plans  fur- 
nished him  by  his  employer,  the  liability  is  placed  on  the 
employer.  ^^  A  brick  contractor  has  been  held  not  liable 
where,  notwithstanding  the  fact  that  the  work  was  done  in 
a  workmanlike  manner  in  accordance  with  the  plans  and 
under  the  direction  of  the  architect,  the  building  fell  and 
caused  the  injuries  complained  of,  by  reason  of  a  defect 
in  the  architect's  plans,  which  was  not  known  to  the  con- 
tractor.^^ ''If  the  negligence  of  a  proprietor  and  not  that 
of  the  contractor  is  the  proximate  cause  of  the  injury,  the 
former  will  be  liable  to  the  one  injured.  Thus,  if  a  con- 
tractor merely  engages  to  do  a  certain  work  on  a  building 
(e.  g.,  the  brick-work)  under  the  direction  of  the  pro- 
prietor's agent  (e.  g.,  the  architect)  and  the  building  falls, 
in  consequence  of  a  defect  in  the  plans  furnished  by  the 
architect,  the  contractor  will  not  be  liable  to  the  one  in- 
jured, for  this  would  reverse  the  rule  (of  respondeat  su- 
perior) and  make  the  inferior  liable  for  the  superior's 
acts."  ^^  In  case  of  plans  so  defective  that  even  a  person 
not  skilled   in  architecture  would  know   them  to  be  dan- 


"  Board,  etc.,  v.  VIckers  (1900), 
62  Kans.  25 ;  61  Pac.  391 ;  Rector, 
etc.,  V.  Paterson,  etc.,  R.  (1902), 
68  N.  J.  L.  399;  53  Atl.  449,  1079; 
16  Am.  Neg.  R.  614,  n. 

"Daegling  V.  Gilmore  (1868), 
49  Ills.  248;  16  Am.  Neg.  Cas. 
416.  For  liability  of  a  steel  com- 
pany which  has  constituted  an- 
other its  agent,  to  put  up  a  brid^5e 
out  of  material  which  it  has  con- 
tracted to  furnish  to  the  em- 
ployees of  such  agent,  for  failure 
to  take  care  to  comply  with  the 
requirements  of  the  contract,  in  so 


far  as  is  necessary  for  the  safety 
of   such   employees,    see    Bross  v. 

Carnegie     Steel     Co.     ( ),    28 

Pitts.  L.  J.  (N.  S.),  318.  Whether 
the  floor  of  a  building  fell  in  con- 
sequence of  its  negligent  construc- 
tion by  the  contractors  or  by 
reason  of  its  being  overloaded 
with  building  materials,  was  held 
in  an  action  against  the  con- 
tractor to  be  a  question  for  the 
jury.  Gardner  v.  Friedrich  (1898), 
25  App.  Div.  521 ;  49  N.  Y.  Supp. 
1077. 
'"  Thomps.  Neg.,  Sec.  647. 


contractor's    LIAHH.ITY — SUBCONTRACTORS.  339 

geroiis,  the  independent  contractor  might  be  hable  for  in- 
juries occasioned  by  complying  with  them.^"  Hence,  one 
contracting  for  the  construction  of  a  lift  bridge  and  agree- 
ing to  pay  all  legal  damages  caused  by  negligence  in  guard- 
ing it  during  construction,  is  liable  for  the  death  of  one 
falling  through  an  unguarded  hole  left  in  the  floor  of  the 
adjacent  viaduct  after  the  removal  therefrom  of  a  derrick 
by  a  subcontractor  undertaking  the  construction  work, 
since  the  work  required  by  the  contract  necessarily  rendered 
the  viaduct  unsafe.^"^ 

Sec.  220.     Same,  Acts  of  Employer. 

When  building  material  is  hauled  onto  the  ground  by  the 
owner  of  the  property,  the  contractor  does  not  become 
liable  for  inujries  caused  by  defective  piling  until  he  has 
taken  control  of  the  timbers  and  entered  upon  the  erection 
of  the  structure. ''*  In  a  recent  Illinois  case  building-owners 
are  held  liable  for  the  death  of  a  contractor's  servant,  who, 
while  at  work  removing  a  stack  from  the  building  and  ex- 
ercising due  care  for  his  safety,  broke  through  the  roof 
and  was  killed,  the  accident  being  due  to  a  hidden  defect 
of  which  the  owners  knew  but  of  which  they  failed  to  warn 
him.'^  A  person  whO'  built  a  bridge  on  a  railroad  com- 
pany's land  for  the  company's  use  in  transporting  baggage 
from  its  station  to  his  hotel  and  to  another  railroad,  was 
held  not  liable  for  a  personal  injury  caused  by  the  bridge 
getting  out  of  repair.^'' 

"Daegling    v.    Gilmore,    supra;  v.   Calvert    (1907),  231    Ills.  290; 

Pejton    V.     Richards     (1856),    11  83   N.    E.    184;    14  L.   R.   A.    (N. 

La.   Ann.   62;    Horner  v.    Nichol-  S.),  782. 

son   (1874),  56  Mo.  220.  ^nVatson   v.    Oxanna  Land   Co. 

"Chicago,  etc.,  R.  v.  LaMantia  (1891),   92   Ala.   320;    8   So.   770. 

(1904),    112  Ills.  App.   43.  See,  generally,  as  to  employer  re- 

"  MacDonald  V.  O'Reilly  (1904),  serv'ing     control     or     interfering, 

45  Ore.  589;  78  Pac.  753.  Chap.  VI.,  ante. 

'"  Si'RiNGFiELD   Light,    etc.,    Co. 


340       INDEPENDENT    CONTRACTORS    AND    THEIR    LI.iBILITY. 

Sec.  221.     Same,  Injury  to  Wrong-doer. 

The  obligation  of  an  independent  contractor  to  tres- 
passers and  licensees  on  the  premises  on  which  he  is  at 
work  is  no  greater  than  that  of  the  property  owner,  though 
the  trespasser  or  licensee  is  the  servant  of  the  proprietor; 
his  own  duty,  it  is  said,  is  to  refrain  from  doing  any  willful 
injury  and  from  setting  traps.^^  Contractors  employed 
in  constructing  a  railroad  can  not  avoid  their  liability  to  a 
third  person  working  on  the  same  road,  who  is  injured 
by  their  negligence,  by  claiming  that  the  right  of  way  on 
which  he  was  working  was  their  own.^^ 

Sec.  222.     Same,  IrjiLry  to  His  Own  Servant. 

The  fact  that  the  proprietor  may  be  liable  does  not  neces- 
sarily negative  the  conclusion  that  the  contractor  is  liable. 
The  general  rule  will  be  that  the  independent  contractor 
will  occupy  the  relation  of  master  and  servant  as  between 
himself  and  his  own  employees  and  that  such  employees 
will  not  be  regarded  as  servants  of  the  proprietor.  It  must 
follow  that  in  any  such  case  of  a  negligent  injury,  where 
the  proprietor  becomes  liable  on  the  ground  that  the  negli- 
gence is  that  of  an  independent  contractor  or  his  servants, 
the  contractor  will  be  liable.^^ 

^  Blackstone  v.  Chelmsford,  etc.,  for  the  owner,  under  a  percentage 

Co.   (1898),  170  Mass.  321;  49  N.  contract  by  which  it  is  to  furnish 

■£   535_  materials   and   labor  and   be   paid 

^Cameron  V.  Vandegrifif  (1892 j,  its  cost  with  a  percentage  added, 

53  Ark.  381 ;  13  S.  W.  1092.  is  an  independent  contractor  and 

=*  Charlock  v.  Freel   (1891),  125  is  liable  for  an   injury  to  one  of 

N.  Y.  357;  26  N.  E.  262;  Doran  the  laborers  so  employed  and  paid 

V.    Flood     (1891),    47    Fed.    543;  by  such  corporation  caused  by  the 

Geer  v.  Darrow   (1891),  61  Conn.  negligence  of  the  foreman  of  such 

220;     23    Atl.     1087;     Wilson     v.  corporation.      Whitney,    etc.,    Co. 

Chicago   (1890),  42  Fed.  506.     A  v.  O'Rourke  (1898),  172  Ills.  177; 

corporation     erecting    a    building  50  N.  E.  242.     A  contractor  em- 


contractor's    LIAFULITY — SUBCONTRACTORS.  341 

Sec.  223.     Same,  Between  Contractors  and  Their  Servants. 

The  question  of  the  liability  of  a  contractor  to  do  iron- 
work on  a  building  for  damages  caused  by  the  negligence 
of  his  servants  in  removing  and  failing  to  replace  certain 
braces,  erected  by  a  contractor  of  the  mason-work,  to  sus- 
tain a  wall,  the  wall  being  blown  down  by  a  wind  of  ex- 
traordinary violence,  arose  where  the  contractor  foi  the 
mason-work,  on  quitting  work  on  Saturday,  left  the  work 
properly  braced  and  not  returning  to  work  until  Monday 
afternoon,  he  failed  to  examine  the  braces,  and  it  was  held 
that  the  iron  contractor  was  not  liable  by  reason  of  such 
failure  to  examine  since  he  was  not  bound  to  anticipate 
their  removal  by  the  other  contractor. ^'^  A  person  in  the 
employ  of  one  contractor  in  working  on  a  railroad,  is  not 
deprived  of  the  right  to  recover  for  a  personal  injury 
visited  on  him  by  the  negligence  of  another  contractor  in 
blasting,  by  reason  of  the  fact  that  his  own  employer  failed 
to  notify  him  a  blast  would  be  fired. ^^  Building  contrac- 
tors employed  to  erect  a  scaffold  to  be  used  by  the  em- 
ployees of  an  independent  contractor,  having  work  to  do 

ploying  laborers  in  and  about  his  is  due  to  poor  material,  defective 

.  work    is    liable    to    his    employees  workmanship  or  bad  management. 

for  any  injury  sustained  by  them  Jones    v.     Philadelphia     Traction 

in  tlie  prosecution  thereof,  the  in-  Co.   (1898),  185  Penn.  75;  39  Atl. 

jury  being  tlie  result  of  his  neg-  889. 

ligence     or     that     of     his     agent.  *  Cameron  v.  Vandegriff  (1892), 

Sullivan  V.  Louis,  etc.,  Co.  (1872),  53  Ark.  381 ;  13  S.  W.  1092.     For 

9  Bush   (Ky.),  81;  15  Amer.  Ncg.  circumstances     under     which    the 

Cas.  147.  question  whether  or  not  the  driver 

^  Pasquini    v.    Lowery     (1892),  of  a  horse  by  which  an  elevator 

18  N.  Y.  Supp.  284;  63  Hun,  632.  was  operated   was  guilty  of  neg- 

Where  the  cap  blows  out  of  the  ligence  rendering  his  employer,  a 

end  of  a  steam  supply  pipe  which  su'icontractor,    liable    for    injuries 

is  being  put  in  by  one  contractor  to    the    servants    of   another    sub- 

and  injures  the  servant  of  another  contractor,  see  Eckman  v.   Lauer 

contractor,  the  owner  of  the  build-  (1897).  67  Minn.  221;  69  N.  W. 

ing  is   not   liable,   if  the   accident  893. 


342       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILiITY. 

on  the  building  are  liable  in  damages  to  the  employees  of 
such  other  contractor  if  they  are  injured  in  consequence  of 
the  scaffolding  having  been  defectively  constructed.^^' 
Where  a  contractor,  being  short  of  laborers,  borrowed  a 
gang  of  men  from  a  third  party,  and  under  such  third 
party's  foreman  one  of  such  laborers  was  put  in  a  danger- 
ous place  at  which  he  was  injured,  the  contractor  and  the 
third  party  were  both  held  liable.-^  \Miere  an  engineer 
of  a  train  collided  with  a  car  negligently  left  upon  a  cross- 
ing by  contractors  of  another  company,  he  was  held  en- 
titled to  recover  against  the  contractors.^® 

Sec.  224.     Same,  Injury  to  Vendee's  Servant. 

"As  a  general  rule,  a  contractor,  manufacturer  or  vendor 
is  not  liable  to  third  parties,  who  have  no  contractual  re- 
lations with  him  for  negligence  in  the  construction,  etc., 
of  the  articles  which  he  handles,  whereby  such  parties  are 
injured.  Such  was  the  principle  applied  in  the  following 
cases  with  respect  to  the  articles  furnished :"  ^^  A  defective 
chain  furnished  to  draw  stone ;  •^'^  an  improperly  hung 
chandelier ;  "^  a  defective  valve  in  an  oil-car ;  ^^  a  defective 


'"Hoffner  v.  Prettyman  (1897), 
6  Pa.  Super.  Ct.  20.  A  contractor 
erecting  a  scafifold  for  his  own 
work  is  not  liable  for  the  death, 
due  to  its  unsafe  construction,  of 
an  employee  of  another  con- 
tractor, who  goes  thereon  without 
invitation,  express  or  implied,  for 
the  purpose  of  accomplishing  the 
work  of  his  own  employer. 
Mauer  v.  Ferguson  (1892),  17  N. 
Y.  Supp.  349. 

^  Rook  V.  New  Jersey,  etc., 
Works  (1894),  76  Hun  (N.  Y.), 
54;  27  N.  Y.  Supp.  623.  See,  also, 
Jehle  V.  Ellicott,  etc.,  Co.   (1898), 


31  App.  Div.  (N.  Y.),  336;  52  N. 
Y.  Supp.  366. 

^Albert  V.  Sweet  (1889,  N.  Y.), 
42  Am.  &  Eng.  Ry.  Cas.  216;  22 
N.  E.  762. 

^  Note  to  Earl  v.  Lubbock 
(1905),  1  K.  B.  253,  in  1  Amer. 
&  Eng.  Anno.  Cas.  756,  citing  the 
cases  referred  to  in  the  following 
notes. 

™  Bhikemore  v.  Bristol,  etc.,  R. 
(1858),  8  El.  &  Bl.  1035. 

■•"Collis  V.  Seldeh  (1868),  L.  R., 
3  C.  P.  495. 

^"  Goodlander  v.  Standard  Oil 
Co.   (1894),  63  Fed.  401. 


CONTRACTOR  S    LIABILITY — SUBCONTRACTORS. 


343 


side-saddle ;  ^^  a  defective  wall  which  fell  on  a  pedestrian ;  ^* 
a  railroad  car  supplied  with  defective  brakes  ;^^  a  defective 
cylinder  in  a  threshing  machine ;'"'  a  defective  bridge  f^ 
a  defective  rim  in  a  balance  wheel ;  ^^  a  defective  steam 
boiler ;  ^^  a  defective  land  roller ;  '''^  a  defective  rope  on  a 
derrick;  "*'  a  defective  shelf  for  a  workman  to  stand  on  in 
placing  ice  in  a  box;^"  a  defective  hoisting  rope  of  an 
elevator;  ^^  shelves  in  a  dry  goods  store  whose  fall  injured 
a  customer ;  ^^  a  porch  on  a  hotel ;  *^  a  defective  hook  hold- 
ing a  heavy  weight  in  a  drop  press ;  "*''  defective  wheels.^" 
A  master  wheelwright  who  contracts  to  keep  in  repair  a 
number  of  vans  owned  by  a  firm  is  under  no  duty  to  a 
driver  employed  by  the  firm,  and  hence  is  not  liable  in 
damages  to  such  driver  for  the  personal  injuries  sustained 


°*  Bragdon  v.  Perkins,  etc.,  Co. 
(1898),  87  Fed.  109. 

"  Daugherty  v.  Herzog  (1896), 
145  Ind.  255;  44  N.  E.  457;  57 
Amer.  St.  Rep.  204;  32  L.  R.  A. 
837. 

'"Roddy  v.  Missouri,  etc.,  R. 
(1891),  104  Mo.  234;  15  S.  W. 
1112;  12  L.  R.  A.  746;  24  Amer. 
St.  Rep.  237. 

"*  Heizer  v.  Kingsland,  etc., 
Co.  (1892),  110  Mo.  605;  19  S. 
W.  630;  33  Amer.  St.  Rep.  482; 
15  L.  R.  A.  821;  Huset  v.  Case, 
etc.,  Co.   (1903),  120  Fed.  865. 

"'  Marvin,  etc.,  Co.  v.  Ward 
(1883),  46  N.  J.   L.   19. 

"Loop  V.  Litchfield  (1870), 
42  N.  Y.  351;   1  Amer.  Rep.  543. 

*LosEE  V.  Clute  (1873),  51  N. 
Y.  494;  10  Amer.  Rep.  638; 
Chase  Cas.  Torts    (Supp.),  14. 

"Kuelling  v.  Roderick,  etc.,  Co. 


(1903),  88  N.  Y.  App.  Div.  309; 
84  N.  Y.  Supp.  622. 

"  Burke  v.  DeCastro,  etc.,  Co. 
(1877),  11  Hun   (N.  Y.),  354. 

*-S\van  V.  Jackson  (1889),  55 
Hun  (N.  Y.),  194:  7  N.  Y.  Supp. 
821. 

"  Barrett  v.  Singer,  etc.,  Co. 
(1865),  1  Sweeny  (N.  Y.),  545. 

"  BuRDicK  V.  Cheadle  (1875), 
26  Ohio  St.  393;  20  Amer.  Rep. 
767. 

"  CuRTiN  V.  Somerset  (1891), 
140  Penn.  St.  70;  21  Atl.  244;  12 
L.  R.  A.  322;  23  Amer.  St.  Rep. 
220. 

*"  McCaffrey  v.  Mossberg.  etc., 
Co.  (1901),  23  R.  L  381;  50  Atl. 
651 ;  91  Amer.  St.  Rep.  637 :  55 
L.  R.  A.  822. 

"  Case,  etc..  Works  v.  Niles, 
etc.,  Co.  (1895).  90  Wise.  590;  63 
N.  W.  1013. 


344       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


by  him  because  of  the  faikire  of  the  contractor  properly  to 
inspect  and  repair  one  of  the  vans.'*^ 

As  long  as  an  elevator  or  other  machine  is  under  the 
control  of  and  being  operated  by  the  manufacturer  or 
vendor,  the  latter  is  liable  for  injuries  to  third  persons, 
irrespective  of  any  privity  of  contract  between  the  parties.'*^ 
In  a  number  of  cases  it  has  been  held  that  elevator  compa- 
nies which  place  elevators  in  buildings,  under  contracts 
with  the  owners  guaranteeing  their  safety,  are  not  liable 
for  injuries  resulting  to  third  persons  from  defects  in  the 


same 


50 


Sec.  225.     Same,  Condition  of  Employer's  Premises. 

The  contractor,  on  his  part,  having  possession  of  his 
employer's  premises  is  required  to  exercise  a  reasonable 
deeree  of  care  with  reference  to  the  employees  of  the 
owner  of  the  premises  engaged  in  necessary  work  thereon. ^^ 


^Eakl  v.  Lubbock  (1905),  1 
K.  B.  253 ;  1  Amer.  &  Eng.  Annot. 
Cas.  753,  citing  and  following 
Winterbottom  v.  Wright  (1842), 
10  Mees.  &  W.  109. 

"Empire,  etc.,  Co.  v.  Brady 
(1896),  164  Ills.  58;  Necker  v. 
Harvey     (1883),    49    Mich.    518; 

PiTTSFIELD,  ETC.,   Co.  V.    PiTTSFIELD, 

ETC.,  Co.  (1902),  71  N.  IT.  522; 
53  Atl.  807;  60  L.  R.  A.  116;  50 
Amer.  St.  Rep.  313;  Cox  v.  Mason 
(1903),  89  N.  Y.  App.  Div.  219. 
"Field  V.  French  (1898),  80 
Ills.  App.  78;  Simons  v.  Gregory 
(1905,  Ky.),  85  S.  W.  751; 
Necker  v.  Harvey,  supra;  Zieman 
V.  Kieckhefer  Elevator  Co.  (1895), 
90  Wise.  497;  63  N.  W.  1021. 
Contra,   Kahner   v.   Otis   Elevator 


Co.    (1904),  96  N.   Y.   App.   Div. 
169;   89   N.   Y.   Supp.    185. 

°'  Kitchen  v.  Riter-Conley,  etc., 
Co.  (1904),  207  Penn.  St.  558;  56 
Atl.  1083;  Gile  v.  J.  W.  Bishop 
Co.  (1903),  184  Mass.  413;  68  N. 
E.  837.  For  circumstances  under 
which  a  contractor  was  exoner- 
ated from  liability  for  the  death 
of  a  painter,  employed  by  the 
owner  of  the  building,  who  was 
killed  by  falling  from  a  high  scaf- 
fold, erected  by  the  contractor's 
employee,  see  Maguire  v.  Magee 
(1888.  Penn.),  13  Atl.  551.  Al- 
though the  relation  of  master  and 
servant  does  not  exist  between  a 
master  stevedore  and  the  member 
of  a  vessel's  crew,  yet  there  is  an 
implied    obligation    resting    upon 


CONTRACTOR 'S    LIABILITY — SUBCONTRACTORS. 


345 


Sec.  226.     Contractor's  Legal  Representatives. 

There  is  no  right  of  action  against  the  personal  repre- 
sentatives of  a  deceased  contractor  who  engaged  to  erect 
a  building  that  would  bear  a  stipulated  weight,  the  contrac- 
tor having  died  before  completing  the  building,  where, 
after  his  death,  it  fell  under  a  less  weight  and  injured  an- 
other's building,  the  fall  being  occasioned  by  the  use  to  which 
it  was  put  after  the  contractor's  death  and  not  by  the  defective 
construction  of  the  wall  by  the  deceased  contractor.^^ 

Sec.  227.     Same,  Injury  to  Employer's  Tenant. 

One  contracting  with  a  landlord  to  heat  a  building  is  liable 
in  tort  for  the  breach  of  a  legal  duty  to  a  tenant  for  damage 
to  him  proximately  arising  from  the  bursting  of  a  water  pipe 
due  to  freezing  because  of  his  negligence  in  permitting  the 
fires  to  go  out.^^  A  contractor  employed  to  replace  an  old 
elevator  with  a  new  one  has  been  held  liable  for  injuries 
to  a  boy  employed  by  a  telegraph  company,  having  a  right 
to  use  a  hall  in  the  building,  from  falling  over  materials 
left  in  the  hall  by  such  contractor,  without  lights  or  suitable 
safeguards,  in  reliance  upon  the  lighting  of  the  hall  by  the 
owner  of  the  building.^^ 


the  former  to  keep  the  machinery 
used  by  him  in  a  reasonably  safe 
and  secure  condition  and  to  oper- 
ate the  same  carefully  so  as  not 
to  injure  members  of  the  crew 
engaged  about  the  vessel ;  failure 
to  do  so  renders  the  stevedore 
liable  to  the  latter.  Minor  v. 
Clark  (18S9),  8  N.  Y.  Supp.  616. 
Plaintiff,  a  hotel  dish  washer,  was 
required  by  his  employer  to  go 
upon  the  hotel  roof  to  assist  in 
placing  signs  there  and  was  in- 
jured by  being  shocked  by  coming 


in  contact  with  defendant's  wires 
negligently  fixed  on  the  roof. 
Giraudi  v.  Electric,  etc.,  Co. 
(1895),  107  Cal.  120;  13  Amer. 
Neg.   Cas.   517,   n. 

°- Methodist    Episcopal     Church 
V.  Rensh   (1857),  7  Ohio  St.  369. 

5»  PiTXSFIELD,    ETC.,    Co.    V.    PlTTS- 
FIELD.    ETC.,    Co.     (1902),    71    N.    H. 

522;  53  Atl.  807;  60  L.  R.  A.  116. 
"  Crane  Elevator  Co.  v.  Lippert 
(1894),  63  Fed.  942;  11  C.  C.  A. 
521.  Contractors  who  make  re- 
pairs on   a  house  are  responsible 


346       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

Sec.  228.     Same,  Acceptance  by  Employer. 

An  independent  contractor  is  not  liable  for  injuries  to 
a  third  person,  occurring  after  the  contractor  has  com- 
pleted the  work  and  turned  it  over  to  the  owner  or  em- 
ployer and  the  same  has  been  accepted  by  him,  though  the 
injury  result  from  the  contractor's  failure  to  properly  carry 
out  his  contract. ^^  In  a  note  to  the  case  referred  to,  it  is 
stated :  ''That  an  independent  contractor  having  a  con- 
tract for  the  doing  of  work,  is  not,  as  a  general  rule,  liable 
for  an  injury  to  the  person  or  property  of  one  not  a  party 
to  the  contract,  occurring  after  the  contractor  has  com- 
pleted the  work  and  has  turned  it  over  to  the  owner  or 
employer  and  the  same  has  been  accepted  by  him,  though 
the  injury  result  from  the  contractor's  failure  properly  to 
carry  out  his  contract  is,  as  stated  in  the  reported  case, 
well  settled."  ^^  The  contractor  and  not  the  owner  is  liable 
for  injuries  due  to  negligence  in  the  removal  of  materials 
and  appliances  belonging  to  the  contractor  after  the  com- 


for  damages  to  furniture  and  ef- 
fects therein,  caused  by  their  own 
negligence  or  that  of  their  em- 
ployees. McDonald  v.  Morrison 
(1898),  15  Queb.  Sup.  Ct.  143. 

^  Young  v.  Smith,  etc.,  Co. 
(1905),  124  Ga.  475;  4  Amer.  & 
Eng.  Anno.  Cas.  226 ;  14  Am.  Neg. 
R.  132,  per  Fish,  C.  J.  See  Sec. 
177,  ante. 

^4  Amer.  &  Eng.  Anno.  Cas. 
228,  citing  Winterbottom  v. 
Wright  (1842),  10  Mees.  &  W. 
109;  Heaven  v.  Pender  (1883),  11 
Q.  B.  D.  506;  Sali.iotte  v.  King, 
ETC.,  Co.  (1903).  122  Fed.  378;  58 
C.  C.  A.  466;  65  L.  R.  A.  620;  16 
Am.  Neg.  R.  615,  n;  Albany  v. 
Cunliff  (1849),  2  N.  Y.  165; 
Daugherty  v.  Herzog  (1896),  145 


Ind.  255;  44  N.  E.  457;  57  Amer. 
St.  Rep.  204;  32  L.  R.  A.  837; 
CuRTiN  V.  Somerset  (1891),  140 
Penn.  St.  70;  21  Atl.  244;  12  L.  R. 
A.  322;  23  Amer.  St.  Rep.  220; 
Fitzmaurice  v.  Fabian  (1892),  147 
Penn.  St.  199;  23  Atl.  444;  First 
Presbyterian  Church  v.  Smith 
(1894),  163  Penn.  St.  561;  30  Atl. 
279;  43  Amer.  St.  Rep.  803;  26 
L.  R.  A.  504;  39  Cent.  Law  J. 
452.  "Where  the  work  is  turned 
over  by  the  contractor  so  negli- 
gently defective  as  to  be  immi- 
nently dangerous  to  third  per- 
sons," the  contractor  is  liable.  4 
Amer.  &  Eng.  Anno.  Cas.  229, 
citing  Devlin  v.  Smith  (1882), 
89  N.  Y.  470;  42  Amer.  Rep.  311. 


CONTRACTOR 's    LIAUIl JTY — SUBCONTRACTORS. 


347 


pletion  of  the  work,  in  which  act  of  removal  the  proprietor 
does  not  participate.^" 

But  the  work  must  be  completed;  it  is  not  enough  that 
the  time  fixed  for  its  completion,  according  to  the  contract, 
has  expired. ^^  The  rule  in  this  connection  does  not  require 
a  formal  acceptance  of  the  work  done  by  the  contractor. 
The  liability  of  the  contractor  will  cease  with  a  practical 
acceptance  after  completion  of  the  work.  Thus,  where  a 
stand-pipe  for  a  municipality  collapsed,  thereby  flooding 
the  plaintiff's  lands  prior  to  its  formal  acceptance  but  after 
the  municipality  had  filled  it  with  water,  the  municipality 
was  held  liable.^'*  \\'here  an  accident  occurred  after  a 
bridge  was  completed  and  turned  over  to  and  accepted  by 
the  owners,  the  independent  contractor  was  not  lialile  to 
the  one  injured.*"'  Where  a  traveler  was  injured  by  the 
fall  of  material  from  a  roof  after  a  contractor  employed  to 
repair  it  had  completed  his  contract,  the  contractor  was  held 
not  answerable."^  As  between  a  contractor  and  third 
persons,  the  contractor  is  not  liable  where  the  injuries  com- 
plained of  resulted  after  the  work  had  been  completed  and 
turned  over  to  the  owner.*^- 

"The  obvious  reason"  why  a  contractor  is  no  longer 
liable  to  third  persons  after  the  w^ork  is  completed  and 
turned  over  and  accepted  "is  that  by  his  contract,  the  con- 


"  Swart  V.  Justh  (1904).  24 
App.  (D.  C),  596. 

"  Blackstone  v.  Chelmsford,  etc., 
Co.  (1898),  170  Mass.  321;  49  N. 
E.  635. 

"Rf-ad  v.  East  Providemce, 
ETC.,  Co.  (1898),  20  R.  I.  574;  4 
Amer.  Neg.  Rep.  589;  40  At!.  760. 
See.  also,  Daugherty  v.  Herzog 
(1896),  145  Ind.  255;  44  N.  E. 
457:  32  L.  R.  A.  837;  57  Amer. 
St.  Rep.  204. 


°"  Salliotte  v.  King,  etc.,  Co. 
(1903),  122  Fed.  378;  58  C  C.  A. 
466;  65  L.  R.  A.  620;  16  Am. 
Neg.  R.  615,  n. 

"Khron  v.  Block  (1887),  144 
Mass.  516;  11  N.  E.  748. 

•^Curtin  v.  Somerset  (1891), 
140  Perm.  St.  70;  21  Atl.  244;  23 
Amer.  St.  Rep.  220;  12  L.  R.  A. 
322;  Fitzmaurice  v.  Fabian  (1892), 
147  Penn.  St.  199;  23  Atl.  444; 
Daugherty  v.  Herzog,  supra. 


348       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


tractor  has  assumed  no  duty  to  third  persons,  but  only  to 
the  other  contracting  party.  The  contract  does  not  draw 
him  into  privity  with  the  stranger  to  it;  ahhough  if,  while 
executing  the  contract,  he  commits  an  injury  upon  a 
stranger,  he  may  be  liable  to  him  in  damages,  but  as  a  mere 
tortfeasor  and  independently  of  the  contract."  ^^  The 
general  rule  exempting  a  contractor  from  liability  after 
the  work  is  turned  over  and  accepted  by  the  proprietor, 
is  subject  to  the  qualifications  that  the  contractor  continues 
liable  where  the  work  is  a  nuisance  per  se  and  where  it  is 
turned  over  by  the  contractor  in  a  manner  so  negligently 
defective  as  to  be  imminently  dangerous  to  third  persons.^^ 
If  a  contract  to  build  a  fence  along  a  railroad  required  by 
statute  is  made  with  the  plaintiff,  and  he  fails  in  its  per- 
formance he  can  not,  of  course,  recover  for  an  injury  to 
his  stock  resulting  from  a  defect  consequent  on  such  failure  ; 
in  such  a  case  he  is  guilty  of  contributory  negligence.  But 
if  he  originally  created  the  fence  under  such  a  contract, 
and  it  was  accepted  by  the  railroad  company  and  paid  for, 
the  company  can  not  afterwards  plead  a  defective  construc- 
tion as  contributory  negligence,  for  by  the  acceptance  they 
assume  responsibility  for  the  defect.^ ^ 


"•Thomps.  Neg.,  Sec.  687.  In 
a  leading  English  case,  the  de- 
fendant had  contracted  with  the 
postmaster-general  to  provide  mail 
coaches  for  a  certain  post  route. 
A  third  party  contracted  to  pro- 
vide the  horses  for  the  coaches 
along  the  same  route  and  he  also 
emploA'Cd  the  plaintiff  as  one  of 
its  drivers.  The  plaintiff  was  in- 
jured by  some  defect  in  the  coach, 
the  fault  of  the  defendant.  It 
was  held  that  the  defendant  wa? 
not  liable  to   the  plaintiff.     Win 


terbottom  v.  Wright  (1842),  10 
Mees.  &  W.  109. 

"Thomps.  Neg.,  Sees.  652,  820. 

*'  Morris  v.  Androscoggin  R. 
Co.  (1855),  39  Me.  274;  63  Amer. 
Dec.  621. 

'"Pfau  V.  WilHamson  (1873), 
63  Ills.  16.  A  contractor  engaged 
to  repair  a  roof,  by  whose  neg- 
ligence the  goods  of  the  tenant 
are  damaged,  is  liable  over  to  the 
landlord  for  a  reasonable  amount 
paid  by  him  to  the  tenant  in  set- 
tlement.       Maloney     v.      Bradley 


CONTRACTOR  S    LIABILITY — SUBCONTRACTORS. 


349 


Sec.  229.     Same,  Indemnity  to  the  Employer. 

If  the  employer  has  had  to  pay  damages  on  account  of 
the  contractor's  negligence,  he  may  recover  them  from  the 
contractor.^*^  A  bond  given  the  employers  provided  that 
the  contractors  "shall  protect  and  keep  harmless  the  said 
(employers)  .  .  .  from  damages  arising  from  acci- 
dents to  persons  employed  in  the  construction  of,  or  pass- 
ing near,  the  said  work;"  and  in  construing  it  the  court 
held  there  could  be  no  doubt  that  the  damages  contemplated 
were  such  as  would  be  done  by  the  contractors  or  their 
employees  and  not  by  the  employer  or  his  employees.  The 
employer  had  been  held  liable  for  negligence  resulting  in 
injury  to  one  of  the  contractor's  servants  and  in  a  suit  for 
reimbursement  on  the  bond  in  question  the  court  held  the 
contractor  not  liable  to  the  employer.^'^  "Whether  X.  was 
an  independent  contractor  or  servant  of  the  property  owner, 
he  is  liable  for  any  sum  which  such  owner  may  be 
compelled  to  pay  on  account  of  injuries  to  plaintiff  occa- 


(1891),  18  N.  Y.  Supp.  757. 
Where  mail  contractors  negligent- 
ly obstructed  a  sidewalk  affording 
access  to  a  station  whereby  a 
passenger  was  injured,  who  re- 
covered a  judgment  against  the 
railroad  company,  the  contractors 
were  held  liable  to  indemnify  the 
company.     Old   Colony  R.   Co.  v. 

Slavcns  ( ),  148  Mass.  363;  19 

N.  E.  372 ;  12  Amer.  St.  Rep.  5.S8. 
•'Perry  v.  P.wne  (1907),  217 
Penn.  252;  66  All.  553;  11  L.  R. 
A.  (N.  S.),  1173,  1176;  10  Am. 
&  Eng.  Anno.  Cas.  589,  citing 
Mynard  v.  Syr.xcuse,  etc.,  R. 
(1877).  71  N.  Y.  180;  27  Amer. 
Rep.  28;  Mitchell  v.  Southern  R. 


(1903).  24  Ky.  L.  R.  2388;  74  S. 
W.  216;  Perkins  v.  New  York, 
ETC.,  R.  (1862),  24  N.  Y.  196;  82 
Amer.  Dec.  281  ;  Manhattan  Rail- 
road V.  Cornell  (1891),  130  N. 
Y.  637;  29  N.  E.  151;  Johnson  v. 
Richmond,  etc.,  R.  (1890),  86  Va. 
975;  11  S.  E.  829,  distinguishing 
Woodbury  v.  Post  (1893),  158 
iMass.  140;  33  N.  E.  86.  See,  also, 
in  support  of  the  rule,  Morton  v. 
Union  Traction  Co.  (1902),  20 
Pa.  Super.  Ct.  325 ;  St.  Louis,  etc., 
R.  V.  Arnold  (1903),  32  Tex.  Civ. 
App.  272;  74  S.  W.  819;  New 
York  V.  Brady  (1893),  70  Hun 
(N.  Y.),  250;  24  N.  Y.  Supp.  296. 


350       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 


sioned  by  the  negligence  of  X.  in  performing  the  work  he 
had  engaged  to  do."  *^^ 


Sec.  230,     Subcontractors. 

The  subcontractor  is  hable  to  third  persons  and  over 
to  his  superior  contractor,  in  those  cases  in  which,  under 
similar  circumstances,  the  superior  contractor  is  himself 
liable  to  his  employer  or  to  third  persons.^^  Obviously  if 
the  subcontractor,  by  his  negligence,  injures  the  owner's 
property,  he  thereby  becomes  liable  to  such  owner  for 
damages,  and  this  wholly  without  reference  to  whether  he 
is  to  be  regarded  as  an  independent  contractor  or  a  sub- 
contractor or  as  a  servant  of  the  chief  contractor  or  of  the 
owner  or  as  a  mere  stranger.'*^ 

One  who  takes  an  independent  contract  to  perform  a 
portion  of  the  work  which  his  employer  has  undertaken  to 
do  is  responsible  for  injuries  caused  to  the  employer's 
servant  by  his  negligent  use  of  appliances  in  the  per- 
formance of  his  work.'^^  Merely  because  the  wrong-doer 
is  a  subcontractor  does  not  per  se  render  the  primary  con- 
tractor liable.'^^ 

When  both  contractor  and   subcontractor  are  negligent 


**Kampman  v.  Rothwell  (1908, 
Tex.),  109  S.  W.  1089;  17  L.  R. 
A.  (N.  S.),  758.  The  work  here 
was  repairing  a  defective  cement 
sidewalk  previously  constructed  by 
X.  and  leaving  it  unguarded. 

™Holt  v.  Whalley  (1874),  51 
Ala.  569. 

'"  BicKFORD  v.  Richards  (1891), 
154  Mass.  163;  27  N.  E.  1014;  26 
Amer.   St.  Rep.   224. 

"  Miller  v.  Moran,  etc.,  Co. 
(1905),  39  Wash.  631;  81  Pac. 
1089;    1    L.    R.    A.    (N.    S.),   283. 


An  original  contractor  sublet 
part  of  the  work  to  an  independent 
sulicontractor  and  informed  him 
be  had  the  legal  right  to  go  on 
the  land  ;  the  landowner's  daughter 
resisted  and  was  injured;  the 
original  contractor  was  held  not 
liable.  Slingerland  v.  East  Jer- 
sey, etc.,  Co.  (1896),  58  N.  J.  L. 
411;  33  Atl.  843. 

''^Overton  v.  Ereeman  (1852), 
11  C.  B.  867;  9  Am.  Neg.  R. 
122,  n. 


CONTRACTOR 's    LIABILITY — SUBCONTRACTORS. 


351 


and  the  damage  can  not  be  distinguished,  each  is  liable  for 
tlie  whole.''^  A  principal  contractor  who  receives  a  struc- 
ture in  defective  condition  from  a  subcontractor  makes  it 
his  own  work  and  is  jointly  liable  with  the  subcontractor 
for  injuries  caused  by  its  defects.'^  If  the  materials  fur- 
nished by  a  contractor  for  a  wall  or  the  work  done  by  him 
were  such  that  the  v^^all  was  unsafe  and  unfit  for  its  intended 
purpose  and  the  principal  contractor  knew  this  or  by  exer- 
cising reasonable  care  might  have  known  it,  and  went 
on  and  made  use  of  the  wall,  and  incorporated  his  own 
work  on  it,  made  payments  to  the  subcontractor  and  ac- 
cepted the  work  as  it  progressed;  and  if  in  consequence  of 
the  character  of  material  furnished  and  work  done  by  the 
subcontractor  the  building  fell  upon  and  injured  plaintiff's 
premises,  the  principal  contractor  is  liable  therefor."''  It 
is  held  that  it  is  the  duty  of  an  independent  contractor,  for 
the  construction  of  a  building  and  not  of  the  owner,  to 
furnish  subcontractors  and  their  subordinates  a  truthful 
copy  of  the  plans  and  specifications,  as  approved,  for  their 
guidance.'''  1  he  doctrine  that  the  proprietor  is  liable  when 
full  control  is  retained,  applies  as  between  the  independent 


"  Van  Steenburgh  v.  Tobias 
(1837).  17  Wend.  (N.  Y.),  562; 
31  Amcr.  Dec.  310;  Partenheimer 
V.  VanOrder  (1855),  20  Barb. 
(N.  Y.),  479. 

'"Carey  v.  Courcell  (1865),  17 
La.  Ann.  108,  dislinc:uishing  Pej'- 
ton  V.  Richards  (1856),  11  La. 
Ann.  62.  as  being  a  case  in  which 
the  work  had  not  yet  been  de- 
livered. 

"Bast  V.  Leonard  (1S70),  15 
Minn.  304.  As  between  the  con- 
tractor and  the  subcontractor,  the 
duty  of  shoring  a  building  is  held 


to  rest  on  the  former  in  the  ab- 
sence of  contrary  proof.  Nelson 
V.  Young  (1904),  180  N.  Y.  523; 
72  N.  E.  1146.  The  principal  con-' 
tractor  was  held  liable  where  the 
property  of  an  abutting  owner 
was  damaged  as  a  result  of  the 
grading  of  a  street  by  a  munici- 
pal corporation.  Sewall  v.  St. 
Paul  (1874),  20  Minn.  511.  See 
other  cases  cited  in  65  L.  R.  A. 
750. 

"Hawke   v.    Brown    (1898).    50 
N.  Y.  Supp.  1032. 


352       INDEPENDENT    CONTRACTORS    AND    THEIR    LIABILITY. 

contractor  and  his  subcontractor  as  well.^^  In  general,  the 
servants  of  a  subcontractor  can  not  recover  from  the  prin- 
cipal contractor  damages  for  injuries  resulting  from  the 
negligence  of  their  immediate  superior,  the  subcontractor, 
where  the  principal  contractor  has  no  control  over  the  sub- 
contractor as  to  the  manner  of  doing  his  work."^®  The  mere 
fact  that  a  scaffolding,  the  fall  of  which  caused  the  injuries 
to  a  workman  for  which  recovery  was  had  against  a  sub- 
contractor, was  built  by  a  contractor,  did  not  render  the 
latter  liable  to  the  subcontractor,  where  he  was  under  no 
contract  to  furnish  scaffolding  for  such  workmen.'^^  "In 
cases  where  the  person  injured  has  been  invited,  expressly 
or  impliedly,  to  use  the  article  causing  the  injury  the  person 
extending  the  invitation  may  be  held  liable  even  though 
privity  of  contract  does  not  exist.  It  is  upon  this  principle 
that  owners  of  buildings,  or  contractors  who  have  con- 
structed scaffolds  for  the  use  of  subcontractors,  have  been 
held  liable  to  the  servants  of  the  latter  for  injuries  result- 
ing from  defective  and  negligent  construction."  ^" 


"Slater  v.  Mersereau  (1876), 
64  N.  Y.  138. 

'"Mohr  V.  McKenziem  (1895), 
60  Ills.  App.  575.  It  has  been  well 
reasoned  by  a  Pennsylvania  Com- 
mon Pleas  Court  that  liability  for 
negligence  cannot  be  shifted  from 
the  contractor  to  an  allegd  sub- 
contractor, unless  the  latter  as- 
sumed the  entire  charge  and 
control  of  the  work;  and,  further, 
that  where  one  is  chosen  for  the 
purpose  of  enabling  the  proprietor 
to  escape  liability,  he  ought  not 
to  be  regarded  in  law  as  an  in- 
dependent contractor  or  subcon- 
tractor. Fox  V.  Porter  (1895), 
18  Pa.  Co.  Ct.  641. 


"Sincer  v.  Bell  (1895),  47  La. 
Ann.  1548;  18  So.  755. 

«"Earl  v.  Lubbock  (1905,  1  K. 
B.  253),  in  1  Amer.  &  Eng.  Anno. 
Cas.  756,  citing  De\t.in  v.  Smith 
(1882),  89  N.  Y.  470  (Earl,  J., 
dissenting),  42  Amcr.  R  p  311; 
CouGHTRY  V.  Globe,  etc.,  Co. 
(1874).  56  N.  Y.  124;  15  Amer. 
Rep.  387;  Bright  v.  B.xrnett, 
ETC.,  Co.  (1874),  88  Wise.  299;  60 
N.  W.  418;  26  L.  R.  A.  524. 
"But  see  Maguire  v.  j^la^ee  (Pa., 
1888),  13  Atl.  551."  If  the  rela- 
tion of  master  and  servant  exists 
between  tlie  contractor  and  sub- 
contractor, the  former  is  liable 
for   the    negligence   of   the   latter, 


CONTRACTOR 's    LIABn.ITY — SUBCONTRACTORS. 


353 


otherwise  the  responsibility  rests 
solely  on  the  subcontractor,  and 
this  general  rule  is  subject  to  the 
same  exceptions  that  modify  it  in 
its  application  between  employer 
and  contractor.  Thus,  if  one 
authorizes  the  doing  of  an  un- 
lawful act,  the  responsibility 
therefor  attaches  to  him,  no  mat- 
ter what  subcontractor  or  deputy 
may  have  actually  committed  the 
wrong  or  injury;  as  if  one,  with- 
out special  authority,  makes  an 
excavation  in  the  sidewalk  of  a 
public  street  whereby  a  pedes- 
trian is  injured,  he  is  liable,  al- 
though the  injury  was  caused  by 
the  negligence  of  a  subcontractor 
in  not  properly  guarding  the  ex- 
cavation. Barrows  on  Neg.,  pp. 
166-7,  citing  Creed  v.  Hartman 
(1864),  29  N.  Y.  591;  86  Amer. 
Dec.  341.     "See,  also,"  Overton  v. 


Freeman  (1853),  11  C.  B.  867;  9 
Am.  Neg.  Rep.  122,  n.  In  a  very 
recent  Minnesota  case,  plaintiff 
was  employed  by  a  building  con- 
tractor; the  servants  of  defend- 
ant, a  roofing  subcontractor,  using 
the  contractor's  large  planks  with 
his  consent  were  about  to  take 
them  down  from  the  girders 
whereon  they  rested  to  the  floor 
below;  one  of  them  saw  plaintiff 
coming  and  called  to  him  to  re- 
move his  wheelbarrow  and  plain- 
tiff went  to  do  so  when  a  plank 
fell  on  him,  injuring  him,  and  it 
was  held  that  the  verdict  that  he 
was  rightfully  there  should  not 
be  disturbed  and  that  defendant 
was  guilty  for  his  servant's  tort. 
Kelly  v.  Tyra  (1908),  103  Minn. 
176;  114  N.  W.  750;  17  L.  R.  A. 
(N.  S.),  334. 


INDEX. 


[References  are  to  sections.] 


Abandonment    of    ^Vo^k,    Effect,  58. 

Absolute    Duties — 

Delegating  to  independent  contractor,  51,  65-67,  85,  97. 

As  to  cities,  53,  67,  139. 

Limitations,  72. 

Blasting,  see. 

Landlord  and  Tenant,  see. 

Acceptance- 
Employer's  liability  after,  19,  58,  65,  76,  99,  173,  209,  228. 
What  constitutes,  58,  67,  174-5,  228. 
Operating  railroad  before,  118. 
Of  benefits,  estoppel,   124. 
Ratification,  124  n. 
County  bridges,  147. 
Knowledge  of  condition,  175. 
Completing  abandoned  work,  176. 
Contractor's  liability  after,  177,  228. 

Agent- 
Distinguished  from  servant,  2,  34  n. 
Defined,  3. 

Basis  of  principal's  liability,  11. 

Distinguished  from  independent  contractor,  14,  34  d  ,  381. 
Contractor  as  employer's  agent,  17,  118. 
Superintending  contractor's  work,  22. 

Appliances — 

Improper  use,  70. 

Employer  furnishing,  99,  180,  183-7,  193. 
Permitting  use  of  defective,  172,  190. 
Employer's  duty  to  inspect,  188. 

355 


356  INDEX. 

[References  are  to  sections.] 

Appliances — Continued. 
Question  for  jury,  191. 
Duty  to  furnish  contractor  with,   193. 
Duty  towards  contractor's  servants,  208. 

Apprentice,  4. 

Appropriation,  see  Trespass. 

Approval   of  AVork  as  Test,  22. 

Architect- 
Supervising  or  approving  work,  23,  57  n.,   170. 
As  independent  contractors,  38c,  100. 
Duty  to  employ,  97  n.,  163. 
Competency  of,  165  n. 
Furnishing  defective  plans,  219. 


B 

Balloon    Ascension,  77. 

Blacksmitli    as    Independent    Contractor,  21. 

Blasting — 

Generally,  73. 

Railroad  construction,  22  n.,  73. 

By  the  day,  34  n. 

Injuring  traveler,  66  n.,  76. 

•City's  liability,  72-3,  139  n. 

Subcontract,  73  n. 

Adjoining  owner  injured,  95,  216. 

Competency  of  contractor,   165,   166  n. 

Employer  interfering,  169. 

Bond- 
Taking  is  not  control,  20b. 
Failure  to  take,  161  n. 

Bridge- 
Railroad,  liability  in  constructing,  24,  29,  90. 
City's  liability,  70  n.,  144. 
Destroj'ed  by  logging,  78. 
County's  liability,  92  n.,  163. 


INDEX.  357 

[References  are  to   sections.] 

Bridge — Con  tinned. 

Landlord's  liability,  107. 
Carrier's  liability,  132  n.,  133  n. 
Defectively  planned,  163,  219. 
Railroad's  duty  to  employe,  187,  206. 
Contractor  liable  for  defective,  219,  220,  224. 

Building    Contract- 
When  independent,  23,  56. 

Liability  to  adjoining  o\vner,  35  n.,  38a,  70,  73,  96. 
Resultant  nuisance,  67  n. 
Wliether  inherently  dangerous,  72  n.,  73,  100. 
Injury  to  passerby,  79,  91  n,  92-3. 
Statutory  duty,  87  n.,  90. 
Repairing,  etc.,  100  n. 

Landlord   erecting  additional   stories,   109. 
Reserving  control,  170. 
Injury  t-o  owner's  servant,  189  n. 

Burden    of   Proof — 

To  establish  relation,  32. 

To  establish  liability,  72,  74. 

To  establish  license,   91  n. 

To  establish  competency,   165. 

To  establish  knowing  acceptance,   175. 

Bush  V.  Steiuman,  48,  72,  86  n.,  100,   116  n. 


Carpenters    as    Independent    Contractors,    38a,    56,    95. 

Carriers — 

Suj)i)Iying    physician,    38k. 

Absolute  duties,  85n.,  118,  131-8,  148  n. 

Contractor  operating  trains,  118,  120,  126,  137. 

Lessee  operating  road,   126. 

Condition  of  roadway,  131-133  n.,  134. 

Condition  of  premises,  132,  229  n. 

Condition  of  vehicles,  133. 

Sleeping  cars,  133,  135. 

Competency  of  operatives,  133  n. 


358  INDEX. 

[References   are  to   sections.] 

Carriers — Con  t  iti  ued. 

Licensee's  negligence,  134. 

Baggage,  135. 

Special  contract  as  to  freight,  136. 

Under  criminal  statutes,  138. 

Stevedores,  148  n. 

Reimbursing  carrier,  229  n. 

Casual  Tort,  see  Collatebal  Negligence. 

Cattle- 
Railroad  contractor  killing,   122. 

Character  of  Obligation,  85-110,  115-151. 
Absolute  duty,  85. 
Statutory  duty,  86-91. 
Proprietor's  duties,  92-99. 
Building  Contracts,  see. 
Landlord  and  Tenant,  see. 
Master  and  Servant,  see. 
Franchise  Rights,  see. 

Character  of  'Work — 

Contract  work  a  nuisance,  67. 

Work  unauthorized,  68. 

Work  unlawful,  65-69. 

Work  calling  for  injurious  result,  65,  70,   74. 

Result  unforeseen,  71. 

Dangerous  Per  Se,  see. 

Charities,   149. 

See  also  Churches,  Schools. 
Selecting  physicians,  164. 

Church- 
Liability  in  building,  23,  38a,  97  n.,  149. 
As  public  charity,  149. 

Cities- 
Liability  of  intermediate   agents,    15  n.,    38m. 
Reserving  control,  19,  20a,  21-2,  24,  139,  140. 
Excavations,  20a,  24,  34  n.,  88,  140,  142. 
Supervising  execution,  22,  24  n.,  25  n.,  86  n.,  143  iv 
Construction  of  contract,  27  n. 
Employe  as  contractor's  servant,  31  n.,  181. 
Burden  of  proof  as  to  relation,  32  n. 


INDEX.  359 

[References   are   to   sections.] 

Cities — Continued. 

Contractor  paid  per  diem,  34  n. 

General   rule  of  liability,  53,   70,   139-146,   160. 

Liability  for  nuisance,  67,  70,  140  n. 

Intrinsically  dangerous  work,  72-74,  92  n.,   129,   140  n. 

Statutory  duty,  86  n.,  88,  139  n. 

Joint  liability  with  contractor,  140. 

Constructing  sewer,  142. 

Grading  street,  143. 

Bridges,  144. 

Necessary  notice,  145,   175  n. 

Contractor's  trespasses,  146. 

Liable  under  contract,  160. 

Liability  to  servants,  181. 

Collateral  Negligence — 

Meaning,  13,  66,  70,   104  n. 

Employer's  liability  for,  45,  66,  69-74,  92,  94,  97,  100,  124  n.,  139, 

140,  143,  162,  164,  206,  216. 
Notice  necessary,  145. 
Contractor's  liability,  215. 

Compensation- 
Manner  of,  as  test,  21,  34. 
Effect  as  to  fire  escaping,  74. 
To  public  charity,  149. 

Competency— 

Of  contractor,  employer's  liability,  19,  67  n.,  73  n.,  133,   164. 
Of  servant  in  public  charity,  149. 
Care  in  selecting,   164,   184. 
Incompetency  known,  165,  206  n.,  210. 
Of  oo- workers,  employer's  liability,  210 

Compulsory  Service,   8,  38  n.,  22. 

Condemned  Buildings,  94. 

Conditional  Undertaking,   90. 

Conduct  of  Employer- 
Express  contract,  65,  160. 
Under  statute,  65,  68  n.,  86-92,   161. 
Duty  to  supervise,  97. 
Duty  to  contract,  162. 


360  INDEX. 

[References  are  to   sections.] 

Conduct  of  Bm.ployer— Continued. 

Contract  for  defective  plans,  65,  66,  70,  163. 

Selecting  Contractor,  see. 

Interference,  see. 

Retaining  control,  see  Control. 

Dangerous  Work,  see. 

Landlord  and  Tenant,  see. 

Landowner,   see. 

Appliances,  see. 

Acceptance,  see. 

Duty  to  inspect,  188. 

Assuring  safety  of  place,  189,  193. 

Defect  known  to  employer,  190. 

Relation  of  parties,   192. 

Furnishing  contractor  tools,  etc..  193. 

Discharge  of  franchise,  194. 

Negligence  of  contractor's  servants,  195. 

Negligence  of  lessor's  servants,   197. 

Subcontractor,  see. 

Constmction  of  Employment  Contract,  27. 

Question  for  court  or  jury,  29,  45  n. 

Contract  of  Employment- 
Construction  of,  27-29,  160. 
Written  contract,  28. 
Question  for  court  or  jury,  28,  29. 
Several  contracts,  97. 
When  admissible,  101. 
Carrier's  special,  as  to  freight,   136. 
Effect  on   employer's   liability,   139,    160,   205  n. 
Duty  to  contract,  167. 

Control- 
As  test  of  relation,  13,  18-27,  34,  45,  46,  52,  93,  215  n. 
Respondeat  superior,  15. 
Necessity  to  relinquish,  19,  24  n. 
Extent  of  retention,  20,  22  n.,  23,  163  n.,   170,  171. 
City  retaining,  20a. 
Owner  retaining  possession,  20a,  26. 
Reserved,  but  not  exercised,  20a. 
Effect  of  partial  control,   20b,   121,   171. 
Taking  bond,  20b. 
Right  of  dismissal,  21,  65. 


INDEX.  361 

[References   are  to   sections.] 


Control^Co«<tn«e(/. 

Purpose  of  retention,  25,  121,   103  n. 

Controlling  premises,  20,  93,  171. 

Construing  contract,  27,  28. 

Liability  when  retained,  65,  170,  171. 

Contractor  in,  of  railroad,   119. 

Contractor's  competency,  164  n. 

Distinguished  from  interference,  170  n. 

Employer  partly  doing  work,   171. 

Joint   control,    171. 

Liable  to  contractor's  servant,  207. 

As  between  contractor  and  subcontractor,  230. 

Couvicts  as   Servants,  S. 

Connty — 

Liability  as  to  bridges,  92  n.,  147,  103. 
General  rule  as  to  liability,   139,   147. 

Conrt — 

Construing  employment  contract,  28,  29,  45  n. 

Crimes  and  Criminal  Statutes,  36,  215. 


Dangerons  "Work  Per  Se— 

General  rule,  65,  66,  72,  115. 
Erecting  building,  69  n. 
What  is  sucli  work,  72,  90. 
Blasting,  see. 
FiBES,  see. 
Excavations,  see. 
ExPLOSR'ES,  see. 
Balloon  ascension,  77. 
Logging,  see  Loggers. 
Overhanging  objects,  79,  92.  93. 
Condemned  buildings,  94,  95,  104. 
Party  walls,  103,  104. 
Landlord's  liability,   109. 
City's  liability,  139. 
Contractor's  competency,  164. 


362  INDEX. 

[References  are  to  sections.] 

Dealers  as  Independent  Contractors,  38 j. 

Death— 

As  test  of  relation,  39. 
Liability  for,  105. 

Department  Supervisor  as  Independent  Contractor,   29  n. 

Derricks,  102,  110  n.,  186,  206,  208  n. 

Dismissal- 
Right  of,  as  test,  21. 
Power  of  substitution,  21  n. 

Dredger  as  Independent  Contractor,  34  n. 

Driver,  Whose  Servant,  7,  31  n.j  32  n. 

Drover,  Servant,  36. 


Electric  Light  Companies,   115. 

Elevators- 
Manufacturers  as  independent  contractors,  38a,  185,  224. 
Operating  derrick,   102. 
Dumb  waiter,  defective,  109. 
In  owner's  building,  210. 

Employe- 
Statutory  meaning,  36,  181. 
Liability  to,  20  n. 

Employer- 
Liability  of,  10-12,  15,  45-58,  chaps.  III-VIII,  228. 
As  principal,  contractor  as  agent,  17. 
Interference  as  test,  18,  19,  20b. 
Selection  of  competent  contractor,  19,  133,  164,  165. 
Liability  after  acceptance,  19,  173-176. 
Supervising  or  approving  work,  22,   108. 
Identified  with  contractor,  30,  76,  124,  167. 
Burden  of  proof  as  to  relation,  32,  101. 
Early  rule  of  liability,  47. 
Present  rule  of  liability,  51. 


INDEX.  363 

[References   are  to   sections.] 

Employer— Con<tw«crf. 

Exceptional  Liability,  see. 

Supplying  instrumentalities,  70,  99,  102. 

Liability  to  contractor's  employee,  70  n.,  99. 

Fatal  results,  105. 

Unskilled,  duty  to  employ  contractor,   164. 

Liability  to  Own  Servant,  see. 

Liability  to  Contractor,  see. 

Liability  to  Contracotb's  Servant,  see. 

Employment- 
Character  of,  as  test,  35. 

Engineers- 
Supervising  work,  24, 
Competency  of,  carrier's  duty,   133  n. 

Estoppel,  Servant  By,  5. 

Excavations^ 

Landowner  controlling,  19  n.,  20  n.,  56. 

City  retaining  control  20a,  24,  72,  140,  142. 

Lateral  support,  liability,  29  n.,  66  n.,  70,  95  n. 

Compensation  per  diem,  24  n. 

Adjoining  owner's  rights,  35  n.,  67,  70,  75,  87,  88,  95. 

City  liable  for,  in  street,  67,  70  n.  72  n.,  75,  88,  140,  142. 

Blasting,  73. 

In  highways,  etc.,  75,  87,  91-93,  125,  161  n. 

Shoring  excavation,  88,  142  n.,  230  n. 

Landlord's  liability,  106  n. 

Railroad's  liability,  125. 

Street  railroads,  130,  215  n. 

Contractor's  liability,  215    n. 


Exceptional  Liability  of  Employe 

Exceptions  to  general  rule,  65. 
Doctrine  of  collateral  negligence,  66. 
See  also  Collateral  Negligence. 
Character  of  Work,  67-79,  see. 
Character  of  Obligation,  85-151,  see. 
Conduct  of  Employer,  160-177,  see. 


364  INDEX. 

[References  are  to  sections.] 

Explosion — 

Licibility  in  repairing  leak,  31. 

Blasting,  see. 

Natural  gas,  76. 

Dynamite,   76. 

Boiler,  76. 

Fireworks,  76. 

Escaping  gas,  142  n. 

Extra-Hazardous,  see  Dangerous. 


Fences  Along  Railroad,  118,  123,  124,  228. 

Ferry- 
Owner's  liability  under  statute,  31  n.,  38  n. 
Carrier  liable  for  negligence  of,  133  n.,  134  n. 

Fire- 
Escaping  to  another's  land,  34,  38i!,   74,  95,   118  n. 
Owner's  liability  after,  92  n.,  95,  206. 
Railroad,  warehouseman,  129. 

Fishermen— 

As  independent  contractors,  30  n. 
Garbage  damaging  fish  nets,  53  n. 

Fixed  Property,  0\Fner's  Liability,  65,  85  n. 

Foreign  Contractor,  57  n. 

Franchise  Rights — 

Generally,  55,  75,  115-120,  194. 
Railroads,  see. 
Street  Railroads,  see. 
Carriers,  see. 


Gas— 

Explosives,  see. 
Plumbers,  see. 
Inhaling,  206  n. 


INDEX.  365 

[References  are  to  sections.] 

H 

Hauling — 

As  iii(lfi)('n(l(Mit  c<mtract,  29  n.,  30,  34,  38d,  38f. 
Obstructing  higliway,  78,  92  n. 

Highivays,  see  Stkeet.s. 

Hireling,  Not  Independent   Contractor,    36. 

Hospitals,  see  Charities. 

I 

Identity  of  Employer  and  Contractor,   30,  7ti,   124,   167. 

Independent   Contractor — 

Distinguislied  from  .-ervant,   13,  21,  24  n.,   4t),  215. 

Defined,  13,  16,  122. 

Control  as  test,  see  Control. 

Distingiiished  from  agent,  14. 

Rule  of  respondeat  superior,  15,  45,  215  n. 

Subcontractor,  see. 

As  employer's  agent,   17,   121  n. 

As   servant,  outside  of   contract,   20a,   124,    198. 

When  question  for  jury,  21,  28,  29,  219. 

When  question  for  court,  28. 

Identified,  with  employer,  30. 

Whose  servant  wrong-doer  is,  31,  135,  196. 

Employee  operating  machine  hired  out,  31  n. 

Burden  of  proof  as  to  relation,  32. 

Compensation  as  test,  34. 

Pleading  the  relation,   37. 

Pauticulab  Classes,  see,  38. 

Early  rule,   47. 

Distinction  as  to  real  and  personal  property,  50. 

Present  rule,  51. 

Liability  for  unlawful  work,  67. 

Penal    liability,   68. 

Liability  to  employer,  effect  of,  118  n.,  140,  229. 

Joint  Liability,  see. 

Liability  after  acceptance,  177,  228,  230. 

Employer  liable  to  servant  for  negligence  of,  182. 

Servants  of  difTerent  contractors,  196,  223. 

Fellow  servant  doctrine,  196,  201,  205  n. 

Employer's    liability   to,   200-202. 


366  INDEX. 

[References   are  to  sections.] 

Independent  Contractor — Continued. 

Liability  to  servant  regarding  premises,  203  n.,  204  n.,  206,  222. 

Liability  to  third  persons,  215,  218,  228. 

Relation  of  parties,  216. 

Exercising  statutory  right,  217. 

Following   defective   plans,   219. 

Liability  for  employer's  acts,  220. 

Injuring  wrong-doer,  221. 

Liability  to  own  servant,  222. 

Injury  to  vendee's  servant,  224. 

Liability  as  to  owner's  premises,  225,  227. 

Survival  of  action  against,  226. 

Injury  to  employer's  tenant,  227. 

Indemnifying   employer,   229. 

Liability  as  between  subcontractor  and,  230. 

Interference  by  Employer — 

As  test  of  relation,  18,  19,  52. 
Effect  of  non-interference,  52,  168. 
Liability  for,   65,  169,  207. 
Wrongful   interference,   168. 
What  amounts  to,  169. 
Liable  to  contractor's  servant,  207. 

Invitees,  Duties  to,  98,  99  n. 


Joint   Liability— 

Of  employer   and  contractor,   67  n.,  69,  70,  73  n.,   75,  91  n.,   95  n. 

101,   140,   103,   171,   173  n.,   204,   223. 
Railroads  and  lessees,   122. 
Cities,    140. 

Contractor  and  subcontractor,   171,  230. 
After  acceptance,  173  n. 

Jnry— 

When  relation  question  for,  21,  26  n. 
Construing  employment  contract,  28,  29. 
Employer's  due  care,  72,  190. 
Employer  interfering,  169  n. 
What  constitutes  acceptance,  174,  n. 
Whose  negligence  caused  injury  for,  219n. 


INDEX.  367 

[References   are  to   sectlona.] 


K 

Knowledge  of  Danger,  72,  75,  76,  92  n. 


"Laborer"   Under    Criminal   Statute,    36. 

Ijandlord   and   Tenant — 

Lessess  as  servant,  27  n.,  28  n.,  106. 

Railroad  lessee  as  independent  contractor,  38g,  89  n.,  IIG,  126. 

Liability  to  tenant,  51  n.,   106-109,  126. 

Enjoining  blasting,  73  n. 

Liability  to  third  persons,  92  n.,  98  n.,  106,  126. 

Discharging  legal  duty,  107,  109. 

Supervising  work,    108. 

Imminently  dangerous  work,  109. 

Leasing  railroads,   126,   197. 

Negligence  of  lessor's  servants,  197. 

Contractor's  liability  to  tenant,  227. 

Reimbursing  landlord,  229  n. 

liandoYimer— 

See  Employee. 

Controlling  excavation,  19  n.,  66  n.,  71,  87,  88,  92,  93,  200. 

Liability   to  public  regarding  building,   22  n.,   104  n.,  216. 

Architect  supervising,   23,    100. 

Controlling  premises,  26,  29  n..  96. 

Fire  escaping,  34,  SSI,  95. 

Liability  for  roofing,  38a,  n. 

Sidewalk,  56,  66  n.,  68,  90-93,  104  n.,  229  n.,  230  n. 

Collateral  torts,  66,  100. 

Result   unforeseen,   71. 

Removing  buildings,  94. 

Adjoining  owner's  rights,  35  n.,  67,  70,  75,  87,  88,  95,  163  n. 

"Attractive  nuisance,"  96. 

Duties  to  invitees,  98,  200,  206,  207. 

Party  walls,   103,   163. 

Grading  street,  not  independent  contractor,  43. 

Liability  to  contractor,  200. 

Liability  to  contractor's  servant,  206,  207. 

Contractor  reimbursing,  229  n. 

Subcontractor's  liability  to,  230. 


368  INDEX. 

[References   are  to   sections.] 

Ijessee,  see  Landlord  and  Tenant. 
Railroad,  operating  road,  126. 

liiability,  Basis  of, 

Constituents,   10. 

Of  principals,  11,  15. 

Of  masters,  12,   15. 

Of  Employers,  see. 

Of  contractor,  see  Independent  Contractor. 

Liability  of  Employer  to  Contractor— 

Generally,  200. 
Relation    of   parties,    201. 
Condition  of  premises,  201. 
On  contract,  202. 

Liability  of  Ei:i3?loyer  to  Contractor's  Servant- 

Generally,  203,  205  n. 
Jointly  with  contractor,  204. 
Relation  of  parties,  205. 
Condition  of   premises,  206,  220. 
Controlling   work,    207. 
Safety  of  appliances,  208. 
After  acceptance,  209. 
Competency  of  co-workers,  210. 
Contributory  negligence,  211. 

Liability  of  Employer  to  Own  Servant— 

Generally,  thap.  VII. 

For  contractor's  acts,  180,   182. 

Providing   appliances,    180,    183-187,    193. 

Relation  of  injured  person,  181. 

Duty  to  inspect  appliances,  188. 

Question  for   jury,    191. 

Duty  to  furnish  appliances  to  contractor,  193, 

Discharge    of    franchise,    194. 

Xegliffence  of  contractor's  servant,  195. 

Xegligence  of  lessor's  servant,  197. 

License — 

Public  employment,  8. 
Disturbing  street  without,  68. 
Exercising,  90  n. 


INDEX.  369 

[References   are   to   sections.] 

Liicensee — 

Railroad's  liability,  29  n.,   120,   128,   134. 

As  independent  contractor,  38g. 

Contractor's  negligence,  90  n. 

Liability   to   public,   91. 

Using   railroad    tracks    in    common,    128. 

Public  charity,   149. 

Servant  of,  negligent,  197. 

lilveryman,   as   Independent  Contractor,   38e,   107   n.,  210  n.,  224. 

Loggers —  "" 

As  independent  contractors,  38f. 
Logging  as  dangerous  work.  78. 

Lumber,   Negligent  Piling,  56. 


M 

Machinery — 

Appliances,  see. 

Contractor  operating,  102,  129. 

Employer  furnishing,  208. 

Manufacturers — 

As  indept-ndont  contractors,  3S/,  180,  216  n. 
Liability  for  boiler  exploding,  76. 
Negligence  of,  carrier's  liability,  133. 
Liability  to  employer's  servant,  180,  183-185. 
Liable  to  vendee's  servant,  224. 

Mason  as  Independent  Contractor,  38a,  140  n. 

Master  and  Servant — 

Defined,  4. 

Servant  of  two  masters,  6,  13,  15  n.,  46. 

Transfer  of  service,  7,  196. 

Compulsory  service,  8,  205. 

Vohmteer  servants,  9. 

Basis  of  liability,  12,   15,  45,  46,   180. 

Respondeat  superior,  15. 

Independent  contractor  as  servant,  20a,    110. 

Construction  of  contract,   27-29. 

Question  for  court  or  jury,  28,  29. 

Whose  servant  wrong-doer  is,  31. 


370  INDEX. 

[References   are  to  sectlong.] 

Master  and  Servant — Continued. 
Compensation  as   test,   34. 
Character  of  work  as  test,  35. 
Xon-assignable  duty,  110,  115,  180,  189. 
Employer   interfering,   168. 
Liability  for  contractor's  a«ts,  180. 
Relation  of  injured  person,  181,   184. 
As  between  employer  and  contractor's  servant,  203,  205. 

Materials- 
Contract  for  improper,  70. 
Statutory  duty,  86  n. 
Authorized   appropriation,   89,   124. 
In  street,  90. 
Employer  controlling  disposal,  171. 

Mechanic  as  Independent  Contractor,  38a. 

Merchant  as  Independent  Contractor,  38f. 

Mines   and  Mine-Ow^ners — 

Leasing  mine,  control,  27  n.,  206. 

Compensation  per  diem,  34  n. 

]\Iiners  as   independent  contractors^   381. 

Owner's  duty  to  contractor,  201  n. 

Owner's  duty  to  contractor's  servant,  205,  207. 

Municipalities- 
See  Cities,  Coitnties. 

Public  authorities  as   independent  contractors,  38m. 
General  rule  as  to  liability,  53,  139-147,  216. 
Quasi-public  corporations,    115,   126,   148-150. 
State  charities,   149. 
"Profit"  corporations,  151. 
Compulsory  contracts,  161. 


N 

Nuisances^ 

Employer's  liability,  65,  66  n.,   67,  72,  96,  170,   173,  207. 
Liability  for  public,  67. 
Attractive  nuisance,  96,  119  n. 
Accepting,   173. 
Contractor's  liability,  228. 

Nurses  as  Independent  Contractors,  38k. 


INDEX.  371 

[References   are  to  sections.] 


Ordinance,  see  Statute. 
Overhanging  Objects,  79,  92,  93. 


Particular  Instances    of  Independent   Contractorc 

Abchtects,  see. 

Blacksmith,  see. 

Carpenteb,  see. 

Gabbier,  see. 

Dealers,   see. 

Depabtment  Supervisob,  see. 

Dredger,  see. 

Elevator  Maker,  see. 

Ferry  Owner,  see. 

Fisherman,  see. 

Hauling,  see. 

Lessee,  see. 

Licensee,  see. 

Liveryman,  see. 

Loggers,  see. 

Manufacturers,  see. 

Mason,  see. 

Mechanic,  see. 

Merchant,  see. 

MiNE-owNEB,  see. 

Municipalities,  see. 

NuBSES,  see. 

Physicians,  see. 

Pilots,  see. 

Plumbers,  see. 

PoBTER,  see. 

Railroad,  see. 

Railway  Constbuctobs,  see. 

Roofer,  see. 

SiiiPOWNEB,  see. 

Steamboats,  see. 

Stevedobes,  see. 


372  INDEX. 


[References   are  to   sections.! 

Particular  Instances    of  Independent  Contractors — Continued. 
Stkeet  Railroad,  see. 
Transfer  Agent,  see. 
Traveling  Agent,  see. 
Truckmen,  see  Hauling. 
Vessels,  see. 

Penalty- 
Liability,  owner,  contractor,  subcontractor,  68,  90. 
Extent  of  liability,  86  n. 

Personal  Performance  as  Test,  33. 

Physicians — 

As    independent    contractor,    38k, 
Competency  in  hospitals,  164,  165. 

Pilots,   8. 

Plans   and   Specifications — 

Defective,  70,  88  n.,  123  n.,  143,  163,  206  n.,  219. 

Calling  for  dangerous  work,  93,  95. 

Duty   to   furnish,   206. 

Contractor  following  defective,  219. 

Pleading  the  Relation,  37,  70. 

Plumber— 

As  independent  contractor,  38a,  76  n.,   100  n. 
Landlord's    liability  for,    106   n. 

Porter  as  Independent  Contractor,  36  n. 

Possession — 

As  evidence  of  control,  20a,  26,  29,  35  n. 
Resuming,  effect  of,  173. 

Presumption — 

As  to  the  relation,  32. 

As  to  contractor's  care,  97. 

As  to  direction  by  employer,  121. 

"Profit"  Corporations,  151, 

Property — 

Rule  as  to  real  and  personal,  50,  51. 

Proprietor,  see  Landowner. 


373 


INDEX. 

[References  are  to  sections.] 

Public    Exhibitions,    150. 

See  also  Stkeet  Kailboads. 

Public  Policy- 
Basis  of  liability,  65  n.,  126. 

Public   Utilities  Companies,   148,   160. 


Q 

Quasi-Public  Corporations,   115,  126,   151. 

R 

Railroads — 

Liability  for  constructing  contractor's  act,  17,  24  n.,  31  n.,  34,  35, 
55,' 66  n.,  86  n.,  93  n.,  110  n.,  116,  118-122,  125,  163  n.,  210. 

Reserving  control,  20a,  20b,  21,  24. 

Company  running  trains  during  operations,  20a,  118,  137,  171  n. 

Blasting,  22  n. 

Engineer  supervising,  24. 

Licensee's  nuisance,  29  n. 

Clearing  right  of  way,  34,  74,  124. 

As  independent  contractor,  38g,  75,  205. 

Exercise  of  franchise  rights,  55,  75,  90  n.,  116-118,  123-125,  131  n., 
134. 

Statutory  duty,  86  n.,  87- 

Master's  non-assignable  duty,  110  n.,  187,  188. 

Operating  crossing-gate,  117,  118. 

Carriers,  see. 

Fences,  see. 

Construction  company  in  control,  119,  121. 

Contractor  killing  cattle,  122. 

Contractor's  trespass,  see  Trespass. 

Ratification,  124. 

Lessee  operating,  126,  197,  205. 

Trustee  operating,  127. 

Using  tracks  in  common,  128. 

Liability  as  warehouseman,  129. 

Accepting  defective  work,  173. 

Negligence  of  lessor's  servants,  197,  205. 

Supplying  defective  car,  224. 


374  INDEX. 

[References  are  to  sections.] 

RailT7ay  Construction  Company- 
General  rule,  17,  35  n.,  38b,  67,  69,  86  n.,  121,  122,  124,  174  n.,  205. 
Blasting,  73. 

Statutory  duty,  86  n.,  121. 
Operating  road,  118-120,  171  n. 
In  control  at  time  of  injury,  119,  122,  174  n. 
Completing  abandoned  work,  176. 
Contractor's  liability  to  subcontractor's  servant,  203. 

Reimbursement- 
Employer  from  contractor,  140  n.,  160  n.,  183,  229. 

Representation,  1,  10. 

Respondeat   Superior- 
Application  of  doctrine,  15,  19,  67  n.,  73  n.,  94,  95,  131,  215  n. 
Liability  of  municipality  employing  agents,  15  n. 
Public  charities,  149. 

Result  of  "Work  as  Test,  18-20. 

Rigger  as   Independent   Contractor,   56. 

Roofer    as    Independent    Contractor,    38a    n. 


Scaffold- 
Employer  furnishing,  99,  180,  184,  200  n.,  208,  209. 
Statutory  duty,  110  n.,  169  n. 
Employer's  duty  to  inspect,  188. 

One  contractor  providing,  another's  servant  using,  223  n. 
Contractor  furnishing,  subcontractor  using,  230. 

School    District- 
Superintending  improvements,  22  n. 
Work  done  on  premises,  54, 
As  public  charity,  149. 

Selecting    Contractor — 

General  rule,  65,  94,  106,  124,  164. 
Competency,  see. 
Degree  of  care,  165. 
Incompetency  known,  168. 


INDEX.  375 

[References  are  to  sections.! 

Servant- 
Distinguished  from  agent,  2,  34  n. 
Defined,  4,  13. 
By  estoppel,  6,  124  n. 
Two  masters,  6,  13,  15  n. 
Transfer  of  service,  7,  196. 
Compulsory  service,  8. 
Volunteers,  who  are,  care  due,  9. 
Distinguished  from  independent  contractor,  13,  21,  34  n.,  35  n.,  46, 

215. 
Whose  servant  wrong-doer  is,  31,  32,  135. 
Negligence  of  contractor's  servant,  195. 
Whether  fellow  servants,  196. 

Sexrer— 

City  supervising  construction,  24,  142. 
Landowner's  liability,  95  n. 
Contractor  negligent,  142. 
Acceptance  of,  175  n. 

SMps— 

Unloading,  owner's  liability,  29,  38h,  208. 

Surgeon  on,  165  n. 

Owner  liable  for  contractor's  negligence,  180  n. 

Sidewalk- 
Proprietor's  liability,  56,  66  n.,  69  n. 
Covered  openings,  68,  91,  92. 
Overhanging  objects,  79,  92,  93. 

Sleeping  Cars,  etc.,  133,  135. 

Statute — 

Under  criminal,  35  n.,  36,  138. 
Under  civil,  36,  73,  136  n. 
See  Conduct  of  Employer. 
Statutory  duty,  86-91,  97,  161. 
Governing  public  charities,  149  n. 
Compulsory  contract,  161. 
Exercising  statutory  right,  217. 

Steamboats — 

Negligent  operation,  owner's  liability,  31   n. 


376  INDEX. 

[References   are  to   sections.] 

Stevedores — 

Servants  of,  7  n.,  148  n. 

Unloading  ship,  29. 

As  independent  contractors,  29  n.,  34  n.,  38h,  132  n.,  207  n. 

Street    Railroads — 

As  independent  contractors,  38g. 

Liability  in  construction,  75  n.,  91,  93,  102,  130. 

Public  exhibitions,  76,  77,  97  n.,  150. 

Obstructing  street,  91  n. 

Elevated  road,  franchise  right,   115  n. 

Leasing  road,  126  n. 

Excavations,  130,  142  n. 

Liability  to  employee,  189.  104,  208  n. 

Streets- 
Obstructions,  burden  of  proof,  32  n. 

Obstructing,  statutory  liability,  36  n.,  86  n.,  91,  125,  143. 
Duty  of  cities,  53,  72  n.,  139  n. 

Negligence  in  grading,  53  n.,  70,  75,  95  n.,  143,  230  n. 
Unlighted  obstruction,  56,  67,  70,  90-92. 
Nuisance  in,  66-69,  75,  78,  90,  95  n. 
Overhanging  objects,  79,  92,  93. 
Railroad  excavating,  125. 

Subcontractors — 

Relation  of,  17,  28  n.,  57,  101,  164,  230. 
Employer  supervising  work,  19,  24. 
Construction  of  employment  contract,  28  n. 
When  contractor's  servant,  31  n.,  230  n. 

General  rule  of  liability,  57,  65,  92,  93  n.,  95  n.,  124,  198,  230. 
Penal  liability,   68. 
Blasting,  73  n. 
Landlord's  liability,  107  n. 
Contractor's  competency,  164. 
Joint  control,  171,  230. 
Acceptance  from,  173  n.,  176  n. 
Liable  to  employee  for  negligence  of,  198. 
Contractor's  liability  to  servant  of,   203. 
Right  to  copy  of  plans,  etc.,  206,  230. 
Liable  to  own  servant  for  negligence  of  another's,  223  n. 
Liability  to  landowner,  230. 
Liability  to  employer's  servant,   230. 
Joint  liability  of  contractor,  230. 
Servants  of,  rights  against  contractor,  230. 


INDEX.  377 


[References  are  to  sections.] 

Substitution,  Power  of,  as  Test,   21   n.,  33. 

Supervision    of     W^ork — 

As  test  of  relation,  18  n.,  20b,  22,  23. 

Of  subcontractor,   19. 

By  employer,  22,  97,  108. 

By  architect,  23,  57  n.,  05. 

By  engineer,  24,  171. 

Purpose  of  supervising,  25. 

Duty  to  supervise,  97,  163. 


Tests     of    Relation — 

Control  as  test,   13,  18-23. 
Result,  not  means,  18. 
Right  of  dismissal,  21. 
Compensation,  21.  34. 
Supervision  or  approval,  22,  23. 
Personal  performance,  33. 
Character  of  work,  35. 
Death  as  test,  39. 

Timber  Cutting,  72  n. 

Time  of  Injury,  72. 

Transfer  Agents,  28. 

Transfer  of  Servants,  7,  20,  29,  31,  32. 

Traveling  Agents,  38i. 

Trespass — 

Work  involving,  67,  69,  70,  88,  89,  95,  124,   146. 

Killing  cattle,  122. 

Authorized  appropriation,  124. 

Exemplary  damages,  124. 

Contractor's  servant  trespassing,  205  n.,  215. 

Contractor  injuring  trespasser,  221. 

Contractor  liable  for  subcontractor's,  230  n. 

Truckmen,  see  Hauling. 

Trustee    Operating   Railroad,    127. 


378  INDEX. 

[References   are  to   sections.] 

u 

Unantliorized   "Work,   Employer's   Liability,    68. 

Unlawful  Work- 
Employer's  liability,  65-69,  72,  85  n.,  86  n.,  92,  230  n. 
Statutory  duty,  86  n. 
Conditional  undertaking,  90,  92. 


V 

Vessels- 
Charterer  as  independent  contractor,  38h. 
Unauthorized  harbor  lights,  68  n. 

Volunteers,  9. 

w 

■Walls- 
Party  walls,  103,  163. 
Removing  dangerous,   104. 
Defective  wall  falling,  224. 

Warekouseman,  Railroad  as,  129. 

W^ater— 

Obstructing  flow,  22  n. 
Flooding  land,  53  n. 

Work- 
Character  of  as  test,  35. 
Abandoned  by  contractor,  58. 

Written   Contract — 

Construction  of,  28,  29. 
Whether  admissible,  73  n. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

'This  book  is  DUE  on  the  last  date  stamped  below. 


W2  61983 


i-\  ICC 


n  !■'  1 


/■i.«TS 


24231 


-i>i:i   I  iQQt-Oj  f iTn  IT/ 


AA    000  744  344    3 


